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Rights and Duties 
of Neutrals 

A Discussion of Principles and Practices 



By 
Daniel Ghauncey Brewer 



G. P. Putnam's Sons 

New York and London 

^be ikntcftecbocfter press 

1916 






Copyright, 19 i6 

BY 

DANIEL CHAUNCEY BREWER 



Ube IRnfcfterbocfter fJrcss, "Wew Korft 



FEB 17 1916 

©GI.A418848 



PREFACE 

nPHE majority of the following chapters 
-■• were prepared for the Army and Navy 
Journal in the belief that the European 
war of 1 9 14 was to force upon the attention 
of the United States issues that might readily- 
lead to war, if the countr}^ was true to its 
traditions as a Neutral Power. 

Of these issues the fundamental one, which 
in a sense involves all others, is of course — 
whether or not a peaceful commercial people 
shall have a place under the sun, or, to put 
it differently, whether nations that prefer 
the cultivation of commerce, art, and letters 
are to impose their will upon militant peoples 
or be ruled by these. 

While the fact that the United States may 
be made a belligerent by breach of its neu- 
trality, makes it suitable for officers, upon 
whom the nation depends in time of stress, 



iv Preface 

to discuss the rights and duties of neutrals, 
it is the subject of no less concern to the 
citizen who craves peace. 

This is because, with the elimination of 
time and space, the nations have been drawn 
together in such a pell-mell way as to make 
strife between any two of them of grave 
import to the others ; and because the sub- 
ject of a great Power, which may become 
instantly involved in hostilities by a min- 
isterial message that reflects nothing but self- 
respect, is apt to find himself involved in 
the swift (not slow) workings of God-driven 
mills. 

A century ago, when the United States was 
painfully evolving the neutrality laws which 
found expression in the Statutes of 1818, 
little consideration was given to the rights 
and duties of neutrals because the arbitrary 
will of monarchs made war a political neces- 
sity. There were neutrals in name, and 
armed neutralities, but they were both too 
weak-kneed to be efficient. 

The imagination of a magician could hardly 



Preface v 

conceive of the change that a hundred years 
have made. To-day peoples, although some 
of them are not as yet sufficiently self-con- 
scious, not kings, are the important factors, 
and the attention of the peoples is turned 
toward commerce not arms. It follows in- 
exorably, if these conditions continue, that 
the sort of neutrality which seeks to separate 
itself from international quarrels, and which 
is the antithesis of belligerency, is on the 
eve of coming into its own. 

Will it? Yes! If neutrals, in an epoch 
that is elemental because of the rush of 
unharnessed forces, and at a time when the 
flight of an army corps in distant battlefields 
may be the signal for changes terrific in their 
consequence, prepare themselves, by arming 
and unflinchingly standing by their rights, to 
compel peace as soldier kings have compelled 
war. 

While the author believes and has not 
hesitated to point out that many customs 
incorporated in the law of nations are based 
on faulty logic, and should be eliminated 



vi Preface 

or modified, he is impressed by the fact that 
law to be of value must be authoritative. 
Great care has therefore been taken, in such 
reference to the rights and duties of neutrals 
as the scope of this book has permitted, to 
state what appears to be the positive law 
of nations, and to make it clear tha-t' the 
latter must control until revision is made. 

D.C. B. 

Boston, Dec, IQIS' 



CONTENTS 

CHAPTER PAGE 

I. — Some General Observa- 
tions .... I 

II. — Neutral Influence and 

Freedom of the Seas . 7 

III. — The Doctrine of Search . 15 

IV. — The " LusiTANiA " Matter — 
Non-Combatants on Mer- 
chantmen ... 23 

V. — Incidental Rules Affect- 
ing Rights of Neutrals 
on the Sea ... 31 

VI. — Convoy .... 39 

VII. — Avoidance of False Issues — 
Expert Service for the 
Press .... 48 

VIII. — Belligerent Use of Neu- 
tral Flags . . -56 

IX. — Touching Neutral Attitude 
TOWARD Certain Belliger- 
ent Innovations . . 66 
vii 



viii Contents 

CHAPTER PAGE 

X. — A Further Word as to Justi- 
fiable Dominion . . 75 

XI. — Blockade .... 83 

XII. — Effectiveness as a Requisite 

OF Blockade . . .92 

XIII. — Some Preliminary Remarks 
Regarding Recent Inter- 
ference WITH Neutral 
Trade .... 100 

XIV. — The Order in Council of 

March, 1915 . . . 109 

XV. — Defense of British Policy . 117 

XVI. — Preliminary Comments on 

THE Law of Contraband . 127 

XVII. — The Unsatisfactoriness of 
THE Doctrine of Contra- 
band .... 136 

XVIII. — General Rules — Absolute 

Contraband . . .144 

XIX. — Contraband as Further De- 
fined BY Recent Procla- 
mations . . . .151 

XX. — Carriage of Contraband 

— Continuous Voyage . 159 



Contents ix 

CHAPTER PAGE 

XXI.—Unneutral Service . .166 

XXII. — Cardinal Rights. . .176 

XXIII. — Expression of Opinion . 185 

XXIV. — Belligerent Agents in Neu- 
tral States . . -195 

XXV. — A New Problem: Aliens and 
Hyphenated Citizens in 
Neutral States . .210 

XXVI. — Embargo .... 220 

XXVII. — Duties as Defined by Pro- 
clamation . . . 230 

XXVIII. — Some Concluding Obser- 
vations . . . . 240 

Index 249 



The laws affecting neutrality for the next century are 
to be determined largely by the attitude of the United 
States during the present European conflict. 

Its commercial prosperity as well as its tranquillity 
depends upon its present sagacity. 



Rights and Duties of 
Neutrals 



CHAPTER I 

SOME GENERAL OBSERVATIONS 

^ X rHETHER the rights of man and of na- 
^ ^ tion precede or follow his or its duties 
is a matter that philosophers must decide. 
For practical minds the rights of either are 
dependent upon a performance of duty. The 
citizen behind the bars may babble of rights, 
but his failure to perform his obligations has 
eliminated these, and the cabinet of a nation 
which has flagrantly disregarded primal law 



2 Neutral Rights and Duties 

cannot expect a hearing when it wishes to 
claim privileges. 

This truth if borne in mind during any dis- 
cussion of the rights and duties of neutrals 
will tend to logical thinking and consistent 
action. It will be found applicable to minor 
matters affecting such theories as those of 
contraband and blockade, as well as to 
broader principles and state policy. 

Thus for an instance and specifically : The 
position of the United States is immensely 
stronger when it insists upon the rights of its 
individual citizens to manufacture and ex- 
port arms (thus directly or indirectly aiding 
either belligerent) than it would be if as a 
nation it had not endeavored to observe 
every obligation which rests upon a neutral, 
by itself abstaining from such activities. 

That any deviation from such a recognized 
standard, viz., the observance of international 
obligations by a state that claims an inter- 
national right, in discussing matters which 
have to do with neutrality, is dangerous, 
scholars will generally agree. Meanwhile it 



Some General Observations 3 

should be obvious to practical men that there 
is a paramount duty which can hardly be 
referred to as prescribed by ethics and inter- 
national law, which cabinets should attend 
to as a matter of high policy and expediency 
before they are driven, as they sometimes are, 
to assert privileges which they have a right 
to claim. 

This is the duty of preparedness, which a 
neutral nation, desirous of peace, owes to 
belligerents, to the sisterhood of civilized 
states, and to its own people. 

(i) To belligerents because they may be 
led by the objector's apparent military weak- 
ness into disregarding rights that are being 
infringed. 

(2) To the sisterhood of civilized states 
with whom in the matter of principles com- 
monly recognized as sound each Power is 
sympathetically leagued for the preservation 
of right standards, whether or not such a 
compact follows lines suggested by the 
Cleveland Conference of May 12, 19 15. 

(3) To its own people who may at any 



4 Neutral Rights and Duties 

time insist upon ministerial action which is 
fraught with peril. 

Primary as this rule of conduct for any 
great and self-respecting state should be, it is 
an extraordinary fact that the United States, 
whose interest and historic part in the annals 
of the last century is that of a neutral, has 
failed to appreciate the place preparedness 
plays in giving effect to proclamation and 
protest. This is the more anomalous because 
the nation has not been blind to its moral 
obligations, and because its population is 
essentially peace-loving, and ought to appre- 
ciate that when the word neutral is printed 
in the same capital letters as the word bel- 
ligerent the world will be far nearer the peace 
millennium than it ever can become through 
opposing resolutions to bayonets. 

Is it not time to change all this ? Is it not 
for men who deal with things as they are in 
the light of what they desire, rather than 
academic theories, to see to it now that our 
national declarations of neutrality be ren- 
dered respectable by putting the nation's 



Some General Observations 5 

reserve or latent power in such shape that it 
can be used if exigency requires ? 

Only by so doing, viz., performing a nation- 
al duty as above described to sovereign states 
grouped as the embodiment of civilization and 
in their several capacities, can we secure the 
standing in court which is essential to us, 
if we mean to champion in our own interests 
and those of humanity the achievements won 
for neutrality in the past, and secure such 
conquests as will put neutral nations into the 
position in world conferences which belongs 
to them. 

It is interesting to discuss the rules of war 
as they apply to neutrals; to define contra- 
band; to argue the limitations of blockade, 
the new theories of ''war zone," etc., but a 
commercial and peaceful nation should never 
forget that the international law of Hall and 
Oppenheim is law made largely under the 
influence of belligerent states in an abnormal, 
not normal, status, and that the industrial 
and social interests of neutrals require that 
positive law in all these matters should more 



6 Neutral Rights and Duties 

closely approximate to the natural law of 
Grotius and Phillimore, which is nothing 
other than economic and moral law. 

This will never be brought about until 
neutral states, noncombatants, speaking 
with authority because they have performed 
their political and ethical obligations, play 
a major part in world councils. 



CHAPTER II 

NEUTRAL INFLUENCE AND FREEDOM OF THE 
SEAS 

A FTER a neutral nation has safeguarded 
'^^ its own interests by preparing for any 
contingency, it finds that as a by-product to 
the achievement of national security it is 
possessed of influence that was not its before. 
This comes automatically with the creation 
of a military and naval force proportional to 
its needs. 

Fitted in its own eyes for defense, it be- 
comes from the belligerent's point of view 
a powerful medium for offense. In this na- 
tions have all the frailty and weakness of 
mortals. During the time that the neutral 
state was of no importance from a military 
point of view it was ignored. Now that 
an army and navy are features of its sov- 



8 Neutral Rights and Duties 

ereign life it is courted and treated with 
consideration. 

It is curious that eminent pacificists whose 
hopes for the future rest upon the part 
assigned neutral states in world councils 
have given this fact so little weight. 

Oppenheim, the text writer on international 
law, is a better observer. To him (vol. ii., 
page 359) the shaping up of such resources 
has been a most important factor in bringing 
about the rapid development in the laws of 
neutrality during the nineteenth century. 
If the distinguished professor is right, and 
ministries involved in war are careful not to 
offend a powerful neutral for fear of driving 
it into the opposite camp, the present oppor- 
tunity for the United States to win lasting 
advantages, not only for itself as a neutral, 
but for all neutral states, is one that is his- 
torically without parallel. 

This is especially so because trade and 
commerce, now the chief factor in community 
life, have waked a world public not only to a 
realization of the economic and unprevent- 



Freedom of the Seas 9 

able loss from war, but to the fact that 
states not involved in conflict are unneces- 
sarily embarrassed by rules which are as 
illogical as they are archaic. 

All that is now needed is strong and con- 
sistent leadership among the nations. With 
this furnished, the close of the present war 
will find belligerent peoples as anxious as 
neutrals to put the noncombatant in a posi- 
tion from which it may even hold the dogs of 
war themselves in check. 

Unfortunately it is one thing to have an 
opportunity to do things of lasting value and 
another thing to act. Meantime no discus- 
sion of neutral rights and duties in this day 
is sufficient that does not contemplate both 
progress and reform. 

In no department of international law is 
this more apparent than in that which in- 
timately affects the United States and which 
has to do with rules and practices governing 
that great portion of the globe which is 
covered with water and is familiarly desig- 
nated as the High Seas, whether the same 



lo Neutral Rights and Duties 

is understood to be the ** unenclosed ocean 
without fauces terrcB'' of Judge Story, or 
is otherwise designated. 

For reasons varying in weight from the 
ingenuously naive and worthless to the re- 
spectable, both publicists and jurists have 
declared these to be free. 

This is puzzling to the student who reads 
of belligerent aggression in the daily press; 
it must be irritating to naval officers who, 
themselves distinguished commentators on 
the law of nations, are informed regarding the 
facts. 

For the high seas are not free in practice 
because of the right of search which is at 
present recognized as belonging to nations at 
war, and the theory is so obviously fiction 
that it is hardly worth while to read learned 
treatises which tell why the ocean is con- 
sidered to be something else than it is. 

No one will deny that here is occasion for 
reform as far as present practice is concerned, 
nor that progress is desirable even if it brings 
the arbiters of international affairs no further 



Freedom of the Seas ii 

than is required to make respectable the 
words — "Freedom of the Seas." 

While serious objection will be urged to any 
change in prevailing custom by the represen- 
tatives of nations that have championed the 
rule of the hour, there is a serious question 
if all such would not directly benefit by 
voluntarily curtailing their powers. Think of 
the trouble that a modification of the right 
of search would eliminate! Now in danger 
of being extended, its broad application long 
since brought peril to promoters who were too 
anxious to force neutral nations into partial 
servitude to notice its effect upon their own 
interests. 

In 1 8 12 it led England into conflict with 
America, and left a hard feeling toward the 
mother country, causing bad blood for over 
a century. It almost precipitated a war be- 
tween Great Britain and the United States 
because of the Mason and Slidell incident 
at a time when the cause of the Union might 
have been wrecked thereby. 

It has recently roused discontent in the 



12 Neutral Rights and Duties 

United States toward all the belligerents; 
and through Germany's inexplicable inter- 
pretation, extension, and application of Pre- 
cedents must, if persisted in, bring it into 
conflict with a great nation that does not 
want to fight. 

Notwithstanding these facts, we cannot 
expect belligerent nations of themselves to 
make any departure from past practices. 
Their immediate selfish interests will not 
permit it. The initiative must come from 
neutral states, which should be prepared to 
argue somewhat as follows: 

**The older publicists, not hidebound by 
precedent, based the freedom of the seas 
upon the sentimental ground that they were 
equally convenient to all peoples as a medium 
for communication and therefore should be 
controlled by none ; and upon the more satis- 
factory premises that no nation, however 
powerful, can exercise consistent dominion 
thereupon. States will find it for their 
advantage to bear in mind both points, but 
especially to recognize actual dominion as 



Freedom of the Seas 13 

the only criterion which justifies meddling 
with the concerns of a sister nation." 

Politely submitted, matter of this sort 
ought to receive fair consideration, especially 
if backed by representations which indicate 
that the neutral nations are wearied of the 
part assigned them — that of the chestnut- 
pulling cat in the fable. 

Perhaps the time has not come for such a 
leap forward. If not, then some approxima- 
tion is to be sought for. Meantime is there 
not reason to believe that if a concert of the 
great Powers ever does decide to limit acts 
of sovereignty to the sphere in which the 
acting nation is in a position (whether by 
peaceful or war measure) to maintain con- 
sistent and constant dominion, then not only 
will a hundred tangles be avoided, but many 
of the new problems which arise in con- 
nection with the adaptation of old rules 
to new conditions will be automatically 
adjusted? 

New conditions are caused by improve- 
ments made in artillery, ships of war, 



14 Neutral Rights and Duties 

fortresses, means of offense and defense. 
These are bound to bring about continuous 
and serious complications for neutrals unless 
positive international law is put on a sane 
basis. 



CHAPTER III 

THE DOCTRINE OF SEARCH 

THE neutral state which realizes that 
it will never secure its rights upon the 
sea until the authority of belligerents is 
curtailed so as to correspond to the power 
they can respectively exert is apt to find 
self-restraint difficult in time of aggression. 
Nevertheless, it is better for prudential 
reasons for it to abide by law and custom 
in this as in other matters until it can secure 
a following among the nations. 

By so doing — viz., itself waiting for inter- 
national acceptance of the reform it never 
hesitates to urge — it 

1. Wins the confidence of sister states; 
and 

2. Puts itself in an impregnable position 
when it comes to insisting that no jot or tittle 

15 



1 6 Neutral Rights and Duties 

of favorable existing law shall be abrogated — 
a thing which it is absolutely essential for it 
to do, unless it prefers to drift into a more 
untenable position than that which it is 
finding so unsatisfactory. 

What is the legal status which properly 
frets the noncombatant commercial neutral, 
and which restricts its sovereignty? Briefly 
and baldly this: While neutrals and belliger- 
ents in time of war have authority over their 
respective lands and appurtenant waters as 
well as over their war-ships on the sea, the 
neutral has only a limited authority subject 
to belligerent visitation, search, and condem- 
nation over its merchant fleet. That is, the 
neutral is expected to quietly suffer an indig- 
nity from a belligerent which a belligerent 
need suffer from none but the enemy against 
whose attacks it is armed. 

That rules, operative on any sea in which 
the belligerent man-of-war sees fit to order a 
neutral trading craft to haul to and submit 
to such a search as pleases the boarding 
officer or his superior, are galling in the ex- 



The Doctrine of Search 17 

treme, are unreasonable and are unfair, must 
occur to anyone. What if there be a block- 
ade of enemy ports or the trader carry 
contraband? Why should the belligerent 
interfere with a neutral ship in waters over 
which God Almighty alone holds dominion, 
and which may be off Kamtchatka, while the 
feud itself affects nations in the antipodes? 

The question can have no very different 
answer from this. In the good old days 
(which seem to be with us again), when na- 
tions pursued war as a business, it pleased 
combative and ruling Powers that neutrals 
should be ''cabined, cribbed, confined,** 
and that their convenience, trade, and very 
life interests should be crumpled into such 
space as suited the militant states. 

Inasmuch as Mars was beyond question 
wielding more influence at the council board 
of the gods in those days than Mercury, such 
policies took shape and form in laws and 
customs suited to the requirements of the 
warrior and inimical to the trader. 

Unelastic, rigid, and set, these laws should 



1 8 Neutral Rights and Duties 

long since have been canceled, with the adop- 
tion of new and wise standards at the begin- 
ning of the nineteenth century, but although 
a few changes have been wrought in their 
character, we are only just coming to appre- 
ciate that the whole matter in mind when the 
doctrine of search was formulated must be 
taken up de novo, if international law is to 
correspond with the eternal verities or with 
the requirements of this generation. 

When is this to be done? One person's 
surmise is probably as good as another's. 
Meantime, it will be a long step forward if 
neutrals can shortly modify the right of 
search so that it will be accorded to none 
except as a police measure in time of peace, 
outside of the waters so dominated by the 
country of the visiting war-ship as to make 
its authority supersede every other. 

Pending this time let us hope that the 
present administration in Washington will see 
to it that nothing is lost which has been 
secured by American diplomacy in the past. 
At present its position is admirably dignified 



The Doctrine of Search 19 

and unassailable. All that remains for it 
when persuasively urged by foreign ministries 
to wink at unconscionable practices claimed 
to be extensions of existing law is to stand 
fast by such deliverances as that of Lord 
S to well in the Flad Oyen, which can be 
found in L. C. Rob. Adm. Rep., the occasion 
being the wrongful condemnation in a neu- 
tral port of a ship taken by the enemy 
French. 

"In my opinion, " says the learned Justice, 
"if it could be shown regarding mere specu- 
lative general principles, such a condemna- 
tion ought to be deemed sufficient, that would 
not be enough — more must be proved. It 
must be shown that it is conformable to the 
usage and practice of nations. '* And again, 
"A great part of the Law of Nations stands 
on no other foundation.*' "It is introduced 
indeed by general principles, but it travels 
with those general principles only to a certain 
extent, and if it stops there you are not at 
liberty to go further, and to say that mere 
general speculations would bear you out in a 



20 Neutral Rights and Duties 

further progress. Thus, for instance, on 
mere general principles it is lawful to destroy 
your enemy, and mere general principles 
make no great difference as to the manner by 
which this is to be effected, but the conven- 
tional law of mankind which is evidenced in 
their practice does make a distinction and 
allows some and prohibits other modes of 
destruction, and a belligerent is bound to 
confine himself to those modes which the 
common practice of mankind has employed 
and to relinquish those which the same prac- 
tice has not brought within the ordinary 
exercise of war, however sanctioned by its 
principles and purposes." 

And again, with special reference to an 
American precedent in the day of our begin- 
nings: "Wisely did the American Govern- 
ment defeat a similar attempt made on them 
at an earlier period of the war. They knew 
that to permit such an exercise of the rights 
of war within their cities would be to make 
their coasts a station of hostility.'* 

And again, with direct bearing upon the 



The Doctrine of Search 21 

plea that has recently reached Washington 
from more than one belligerent: ''The true 
mode of correcting the irregular practice of a 
nation is b}^ protesting against it and by- 
inducing that country to reform it. It is 
monstrous to suppose that because one coun- 
try has been guilty of an irregularity every 
other country is let loose from the Law of 
Nations and is at liberty to assume as much 
as it thinks fit." ''Institutions must con- 
form to the text law and likewise to constant 
usage upon the matter. " 
: Here are statements so sound and reason- 
able that eminent text writers quote them as 
articulating the sense of the nations. 
; It is improbable that neutral champions 
endeavoring to prevent any slipping away 
from such custom as is beneficent can find 
anything more applicable with which to meet 
the argument of an overreaching belligerent. 
They should be borne in mind in discussing 
the limitation of belligerent right to interfere 
with neutral shipping. They also have a 
direct bearing on such other matters touching 



22 Neutral Rights and Duties 

the rights of neutral citizens as have been 
forced upon public attention in the United 
States by the unfortunate incident of the 
Lusitania. 



CHAPTER IV 
THE Lusitania matter — non-combatants 

ON MERCHANTMEN 

NO better illustration can be given as to 
the right and the wrong course for a 
neutral to pursue at a moment when basic 
principles are under discussion, than that 
furnished by the resignation of Mr. Bryan 
from Mr. Wilson's Cabinet, June, 191 5. 

The question before the American people, 
acting not only for themselves but in the 
interests of the race, was — righteousness or 
peace — which! 

Mr. Bryan said first peace, and perhaps 
righteousness if a court provided for along 
lines suggested by him so arranges. The 
President, with clear insight into the hearts 
of the American people, said — righteousness 
first, then let us hope, peace. 
23 



24 Neutral Rights and Duties 

While any pacificist ought to see that in the 
eternal order of things Mr. Bryan's cast of 
peace conscientiously suggested could only 
be temporary at the best, it is dreadfully 
apparent that there is much confusion of 
thought. 

In no other way can we explain the regret 
recently expressed in a certain part of the 
press, which affirmed that the United States 
by standing too vigorously for principle had 
lost the opportunity to lead a coalition of 
neutrals and be the peacemaker of Europe. 

Because of this befogged condition of 
the public mind — consistently and persist- 
ently bewildered by the sociological group 
that anticipates the near approach of the 
millennium — it is desirable to clearly distin- 
guish issues so that people may understand 
that the defense of neutral rights is one thing 
— the inauguration of world peace another. 

This being done, men who look forward to 
the elimination of war can then produce such 
arguments as they please to convert to their 
way of thinking those of us who are incorrigi- 



Non-Combatants on the Seas 25 

ble doubters and who believe that there are 
more important things in Hfe than the attain- 
ment of a peaceful status; that there is noth- 
ing in the moral law or the teachings of the 
founder of Christianity that prefers dissimu- 
lation to straightforwardness, temporizing 
to decision, cowardice to intrepidity, or that 
there is no better way for this generation to 
assist in bettering international conditions 
than by endeavoring to secure for nations at 
peace (neutrals) recognized or unrecognized 
rights which belong to them, but which have 
heretofore been too frequently disregarded. 

Meantime having eliminated such matter 
as is irrelevant, and having brought home to 
those who are looking for light the fact that, 
although a pacificist may be a neutral, it by 
no means follows that a neutral has to be a 
pacificist, those who look for progress through 
the broadening and extending of right legal 
principles can take up the matter affecting 
neutral rights which had the attention of 
President Wilson at the time of Mr. Bryan's 
resignation. 



26 Neutral Rights and Duties 

In doing this they will find that there is no 
question or doubt about the existing law of 
nations regarding the status of non-combat- 
ant individuals traveling upon other than 
war vessels. 

Wrangle as the nations have pleased to 
about free goods, free ships, visit, search, and 
contraband, from the time of the Consolato 
del Mare to August, 19 14, they have been in 
accord regarding human life on the high seas. 

Thus there has grown up a body of positive 
laws, buttressed, fortified, and resting upon 
foundations which include the appreciation 
of natural law by medieval and modern 
conscience, the conclusive reasoning of the 
keenest intellects, and the formal assent of 
great sovereignties. 

These affirm and insist that the non-com- 
batant, whether neutral or enemy (but 
emphatically if neutral), is to be protected in 
every exigency which may arise in connection 
with the chase, overhauling, capture, and dis- 
position of a merchant vessel, unless there be 
such resistance on the part of the carrying 



Non-Combatants on the Seas 2^ 

ship, after full warning, as will justify the 
man-of-war in taking severe measures by 
way of self-defense, or in order to compel 
obedience to its demands. They cannot be 
construed otherwise than as requiring the 
captain of a cruiser or other national craft 
to use every resource at his command to 
avoid the endangering or destruction of 
people not themselves bearing arms or in the 
regular service of the enemy. 

With the law thus defined and available 
by the use of responsible text-books written 
in any of the great modern languages, and 
with the facts which have to do with the 
matter in hand (viz., the loss of the Lusitania) 
collated and published, it will be surprising 
if such inquiries do not come to the following 
conclusions : 

1. That this is a case where natural and 
positive law are one, the decisions of courts 
keeping pace with eternal principles of justice 
and equity, and therefore not to be lightly 
surrendered. 

2. That if the rights thus accorded neutral 



28 Neutral Rights and Duties 

citizens be infringed, it is for the neutral 
state to take action, provided it is desirable, 
as seems to be generally believed, that neu- 
trals shall take an increasing part in the 
shaping of the law of nations. 

3. That any failure on the part of the 
neutral to insist upon observance of a law 
and custom which thus seriously affects it, 
or the substitution of such a scheme as was 
suggested by Mr. Bryan, would not only 
negative neutral influence for the time be- 
ing and hereafter, but exalt belligerency 
and push it back upon the throne from 
which it has sent forth so many bloody 
decrees. 

4. That at a time when the engines 
of destruction are becoming more fright- 
ful, any cowardice in the maintenance of 
recognized standards will permit the in- 
vasion of peaceful fields by a new cloud of 
terror. 

In that case a plain duty will follow, to take 
issue with the recent Secretary of State, whose 
sincerity is not impugned, and to see to it 



Non-Combatants on the Seas 29 

that the general public has the law and the 
facts clearly brought to its attention. 

Our democracy cannot live without discus- 
sion of these vital things which have to do 
with its well being. Mr. Bryan himself in a 
late publication has come out as unequivocally 
endorsing a platform already assumed in these 
pages, viz., it is for neutrals, not belligerents, 
to dictate the international law of the future. 
Perhaps after all the arguments are in he may 
be brought to see that the way adopted by 
the President, at this time of national crisis, 
is profoundly in the interest of such world 
peace as is attainable. 

However this may be, with right matter 
put properly before him, it seems as if any 
American of good understanding, whether 
conscience-dulled by modern vagaries or not, 
would say in the exigency caused by the 
unhappy loss of American lives by belliger- 
ent usurpation : 

'* There is but one choice, unless the nation 
is to forfeit rights and prove recalcitrant. 
This is — to demand a discontinuance of a 



30 Neutral Rights and Duties 

lawless practice, and if no attention be given 
its reasonable representations, to take such 
steps as may seem expedient to forcibly 
prevent a recurrence of the offense." 



CHAPTER V 

INCIDENTAL RULES AFFECTING RIGHTS OF 
NEUTRALS ON THE SEA 

T^HE thirteenth convention of the second 
■*■ Hague Conference which concerns the 
rights and duties of neutral Powers in naval 
war contains the following: 

"These rules should not, in principle, be 
altered in the course of the war by a neutral 
Power, except in a case where experience 
has shown the necessity for such change to 
protect the rights of that Power." 

The stipulation should be borne in mind, 
otherwise a neutral taking advantage of an 
opportune moment to win that which has 
been wrongfully withheld, may put itself on 
a par with belligerents which are heedless in 
regard to international law when it suits their 
convenience. 

31 



32 Neutral Rights and Duties 

Thus fortified in prudence one can safely 
take notice of certain belligerent practices 
on the high seas which are frequently over- 
looked in the consideration of major matters 
regarding search, the duty owed neutral 
travelers on merchantmen, contraband, and 
blockade. 

Among the most important of these are: 
The practice of claiming that enemy goods 
continue enemy after sale to a neutral; the 
practice of treating vessels employed or 
leased by a belligerent for the purpose of 
victualling an enemy garrison or fleet, or the 
performance of kindred services, as lawful 
prize; the practice of seizing neutral goods in 
enemy ships when the same have what is 
briefly designated as enemy character. 

Certain of these rules which favor the bel- 
ligerent rather than the neutral are fair, 
others are not. Some are grounded on wrong 
premises — none have had the attention they 
deserve. 

For the present, however, they should be 
the subject of keen analysis rather than of 



Incidental Sea Rules 33 

action, because the law, whether it be equita- 
ble or otherwise, is fairly well defined, and 
nations at war may properly plead that the 
time is not convenient to suggest readjust- 
ment. 

Bearing in mind, then, the fact that the 
discussion of certain matters with a view to- 
ward immediate correction is tabooed during 
the continuance of hostilities, we come to the 
consideration of aggressive belligerent acts 
which injure a neutral and for which there is 
insufficient warrant. 

These may be classified under three heads, 
and briefly reviewed without considering the 
application of this grouping to a wider field 
than that which is represented by such neu- 
tral interests on the high seas as cannot be 
more conveniently treated elsewhere. 

Class I. includes acts which give ample 
opportunity for protest, formal representa- 
tion, and recommendation. This is because 
the law governing them is unsettled. Among 
these will be found cases which the conferees 

in the London Convention found it impossible 
3 



34 Neutral Rights and Duties 

to dispose of, and in which the rules proffered 
were neither accepted nor rejected. 

For instance, if neutral goods are found in 
the country of a belligerent at the opening of 
a war, under the French rule they take char- 
acter according to the nationality of the 
owner, while by the EngHsh doctrine their 
status is determined by the locus. 

Here are two radically different theories 
which may affect merchandise which is later 
shipped in enemy vessels. 

So far the nations have been unable to get 
together on common ground. The whole 
matter is therefore open for neutral comment., 
and the exercise of neutral influence. So is 
it in the matter of enemy trade jealously 
guarded by a warring nation during the days 
when its commercial interests had first atten- 
tion. There is a doctrine affirmed by some, 
denied by others, that inasmuch as the par- 
ticular trade in question is vital to the bellig- 
erent, neutrals which see fit to enter into the 
same lose their character of impartiality 
and must suffer accordingly. Here again is 



Incidental Sea Rules 35 

a fair field for the neutral. Nothing is so 
settled and defined as to preclude a sagacious 
Power from exercising its diplomacy in such 
a manner as will secure lasting results. 

Further instance is hardly needed by way 
of illustration. 

What we are to bear in mind is this, viz., 
that when there has been affirmation pro and 
con, whether by courts or international pub- 
licists of reputation, the neutral is accorded 
an opportunity to play a distinguished part 
in the shaping of international law. 

Class II. comprehends acts which are with- 
out precedent, but which may themselves be- 
come precedents and endanger neutral rights 
in the future if permitted to pass unnoticed. 

One does not have to go far for examples in 
days when the ingenuity of man is devising 
engines of war to prowl beneath the sea and 
in the firmament above. Such departures are 
of immense significance to belligerents as well 
as neutrals, and should, with a view to the 
future, be considered as carefully by them 
as by non-combatants. 



36 Neutral Rights and Duties 

It goes without saying, however, that the 
onus of seeing that novel war measures are 
in accord with natural law rests upon neu- 
trals, and that they will be looked upon solely 
with regard to the military necessity of the 
hour by peoples who believe they are fighting 
for national existence. This is true even 
when it is suicidal for a belligerent to cham- 
pion an erroneous practice. 

Thus Germany by her use of the submarine, 
and with an eye to providing an offset to 
Great Britain*s broadened theory of war 
zones, may be said to be thrusting a knife 
into her own vitals by teaching maritime 
nations how they may spread their rule at 
sea with smaller cost to themselves. Indeed, 
the Kaiser's Government has given the im- 
pression that it may go further and refuse 
the rational and necessary requests of the 
United States. A thing which, if actually 
done, will furnish Great Britain and her 
colonies, should she be victorious, with a 
precedent that may hereafter cause Ger- 
many's undoing. 



Incidental Sea Rules 37 

This case, with which everyone is familiar 
in these days of stress, is only one of many 
that might be cited to show the inability of 
the belligerents to look after their ultimate 
interests under the pressure of war. 

Neutral states must therefore expect to go 
on record in such manner as will protect not 
only their own rights, but those of humanity. 
In declining to do this they assume great 
responsibility. On the other hand if they 
perform that which must be regarded as a 
duty of the most primary sort, it will not be 
at all astonishing if they find themselves later 
supported — and stanchly too — by nations 
whose eyes are for the present holden that 
they cannot see. 

Class III. comprises acts which justify 
action because they constitute a breach of the 
law which safeguards the neutral. 

* ' Gentlemen may cry — Peace — Peace, * * 
but there can be no peace for humanity as 
long as the neutral allows such matters to 
pass unnoticed. Leagues to enforce peace 
may be admirable, but will ever prove insuf- 



38 Neutral Rights and Duties 

ficent without moral stamina, and there is no 
moral stamina when a strong neutral nation 
permits itself, its people, and human rights 
to be trodden under foot in defiance of estab- 
lished law. 



CHAPTER VI 

CONVOY 

\TEKY little has been said in connection 
with the complications caused neutral 
shipping by British Orders in Council, about 
convoy. Why? Perhaps because the un- 
usual blockade now being enforced against 
the central Powers of Europe comprehends 
the shutting off of enemy exports through 
neutral countries as well as imports, and 
makes such a provision embarrassing. For 
while it is possible that convoy might be 
arranged in the interest of merchant fleets 
sailing from neutral ports that are within 
the British zone, the matter would be a diffi- 
cult one, and precedents are not available. 
However this may be, it cannot be denied 
that if the use of convoy (whether lim- 
ited or not) can be made to modify any 
39 



40 Neutral Rights and Duties 

phase of a trying situation, it should be 
introduced. 

No neutral is going to take up arms against 
Great Britain until it is better satisfied that 
her theory of blockade is as indefensible as 
it is now believed to be. Meantime and 
during the exchange of diplomatic notes, it 
is conceivable that effort may properly and 
advantageously be made along the line of 
providing men-of-war as escorts, and other- 
wise, to eliminate causes of friction which are 
arising as a result of that blockade. 

One of these causes is the transshipment 
of cargoes so that goods consigned by a 
neutral to a neutral reach a belligerent. The 
British ministry, with a color of right because 
of the law laid down by United States as well 
as British courts, and because the neutral 
countries next adjacent to Germany are 
piling up supplies until they have reached a 
bulk far beyond their domestic needs, is 
interfering with neutral intercourse. They 
plead that if they failed to do this, their 
blockade would be ineffective, and that the 



Convoy 41 

surplusage of the merchandise delivered in 
Denmark, Holland, and Scandinavia has an 
enemy destination. 

To their argument an exporting neutral 
may well reply: "We admit that you are not 
altogether without grounds for your sus- 
picions; meantime your practice, aside from 
your inadmissible theories of blockade and 
contraband, constitutes a real grievance to a 
friendly Power. We therefore propose here- 
after to send ships in the North Sea trade 
under convoy of war vessels, admitting none 
to the protected fleet except carriers whose 
trade is legitimate." 

It is submitted that such a communication, 
properly followed up, even if it failed to 
bring a favorable reply, would leave his 
Britannic Majesty without further excuse 
for meddling with such trading between 
neutrals as is usual and proper. This is 
because even British statesmen, with their 
traditions of ocean overlordship, must 
recognize the fact that the guaranty of a 
neutral government cannot be gainsaid with- 



42 Neutral Rights and Duties 

out offense more serious than the difficulty 
they are trying to meet. They have already 
gone on record in the London Convention in 
favor of such practice — a mighty concession — 
and know that those who advocate it are 
thinking clearly and logically. Therefore 
even should they claim that the London Con- 
vention was inoperative, they could hardly 
by so doing escape the charge of being disin- 
genuous and unfair. 

Whether or not such a proposition on 
behalf of a neutral during the present war 
is feasible or desirable, depends upon facts 
which are not apparent to the unofficial 
observer. Meantime no discussion of neutral 
rights and duties ought to overlook reference 
to a custom that through neutral persistence 
promises to harden into law. 

It was in 1653 that Sweden, in a similar 
predicament, because of war between the 
Netherlands and Great Britain, to that in 
which she now finds herself, urged that 
belligerents should waive rights of visitation 
in case of convoy, provided the commander 



Convoy 43 

of the latter gave proper guaranties. Sweden 
was on safe ground although the peace of 
Westminster made it unnecessary to pursue 
the matter at that time. She was claiming 
something inherent in her as a sovereignty, 
viz., a right to officially administer and say 
the final word in regard to her own subjects 
and their belongings when on the high seas, 
and particularly when under the guns of 
a government ship. Whether or not she 
carried conviction to other cabinets at the 
time is doubtful, but it is a most interesting 
fact that the Netherlands, involved as a 
belligerent in 1653 but a neutral in 1756, was 
pushing the same contention a hundred 
years later. This indicates that the latter 
country was impressed. Indeed evidence of 
this is cumulative, for in 1781 the Nether- 
lands, again fighting with Great Britain, made 
it a point to give convoy full belligerent 
recognition. By this time ''convoy" was no 
longer a new proposition for the avoidance 
of ruthless visitation and search. 

Prior to 1800, treaties recognizing the 



44 Neutral Rights and Duties 

authority of a warship convoying ordinary 
carriers had been signed by the United 
States and all of the great Powers now at 
war except Great Britain and Italy, and the 
practice was well under way toward receiv- 
ing the standing in international law which 
belongs to it. Great Britain, however, was 
not complaisant, and her concessions were so 
grudgingly given as to discourage continental 
critics. Indeed, if it had not been for the 
Naval Conference at London in 1908-9, it is 
probable that she would still be in the position 
of a dissenter and obstructionist. 

The struggle over the inviolability of a 
convoyed merchantman is synchronous with 
the slow emergence of neutrals as sovereign- 
ties having a part in the progress of the 
nations. As the law now stands, if we regard 
the unratified London Convention as most 
nearly summarizing the best thought of the 
hour, as well as reflecting the weight of 
authority in regard to maritime affairs, neu- 
tral vessels are immune when under convoy. 
Great Britain may undoubtedly claim that 



Convoy 45 

she is not acquiescent because of the infor- 
mality of the London agreement. This does 
not seem probable. If it were, neutral nations 
should refuse to relax a rule which has been 
sufficiently endorsed and which is based on a 
reasonable theory. The time has gone by 
when a neutral merchantman can be cut 
out with warrant from under the guns of a 
government ship. Let the belligerent com- 
mander harbor such suspicions as he may, 
there is no overruling the decision or report, 
of the captain of the protecting war vessel 
except by referring the matter to the bel- 
ligerent government concerned. This may 
take such action as it pleases. That is a 
secondary condition. The significant fact is 
that with the shifting of the issue from the 
high seas to the cabinet, unjustifiable usurpa- 
tion of authority is discouraged and the rights 
of sovereignty vindicated. 

Convoy was once a phrase that was not 
unfamiliar in maritime countries. It has 
fallen into disuse. Whether or not war 
conditions will bring it into the fore again 



46 Neutral Rights and Duties 

remains to be seen. Meanwhile reference to 
the custom is of value for two reasons : 

(i) The reader can hardly select an inter- 
national question of moment which better 
illustrates the manner in which neutral 
Powers have laboriously but successfully 
pushed their claims upon the attention of 
warring nations ; (2) the claim that a convoy- 
ing warship represents its government for 
the purpose of the moment is a formal 
demand for the recognition of sovereignty in 
the great spaces of the globe which are not 
subject to dominion. As such it suggests an 
era which may not be as distant as pessimists 
insist, when the neutral merchant vessel, 
outside home and belligerent waters alike, 
and still on the high seas, shall be regarded as 
a part of the country from which it sailed, 
and free, except for international police 
surveillance, to control its own movements. 

Not so many years gone by Great Britain, 
as alleged mistress of the seas, did not hesitate 
to visit and search a neutral warship. She 
has made great concessions in the interest of 



Convoy 47 

international law since those days. Whether 
or not she will make more in the near future 
depends both upon the wisdom and firmness 
of the United States and other neutral gov- 
ernments, and the consistency of the great 
countries with which she has joined battle. 



CHAPTER VII 

AVOIDANCE OF FALSE ISSUES — EXPERT SER- 
VICE FOR THE PRESS 

THE path of a neutral is difficult enough 
in these days of stress without adding 
to its perplexities. At the best, its duties are 
not easy to perform and its rights are hard 
to maintain. Notwithstanding this there 
are numberless journalists who insist upon 
stirring the neutral people of the United 
States with false as well as real issues. 

No better instance can be cited than that 
of the Armenian. Whatever the official re- 
port may later show, the story which first 
reached the news centers contained no ele- 
ment that made the sinking of the freighter 
parallel the case of the Lusitania. This in no 
way discouraged the press. Even papers 

that are carefully edited informed their 
48 



Avoidance of False Issues 49 

readers that there was cause for apprehen- 
sion in the fact that Germany was continuing 
the illegal use of the submarine as if no pro- 
test had been made. Yellow journals went 
further. To their mind the sinking of the 
Armenian took the place of a diplomatic note. 
It was Germany's way of saying, "We ac- 
cept your implied challenge and join issue. 
Hereafter we shall continue to destroy 
merchant ships and non-combatants at our 
pleasure. If Americans happen to be in- 
volved, so much the worse for them. " 

People who are informed and who reason 
carefully from premise to conclusion were 
naturally not deceived. 

According to the published account the 
Armenian was: (i) Carrying freight rather 
than passengers; (2) conveying mules direct 
to the British or allied armies; (3) under 
charter to the British Government, or in its 
direct service, whether the relation was that 
arising by requisition or contract; (4) prob- 
ably officered by the British Government; 
(5) the meager returns at hand failed to state 
4 



50 Neutral Rights and Duties 

whether the destroyed ship had attempted to 
escape or had offered resistance, and without 
such data the spirit of fair play required a 
suspension of judgment. 

Thus the tale carried in itself elements 
which refuted the suggestions which editors 
were pleased to make, and the latter would 
have been harmless if the ordinary reader 
were trained to logical thinking. Unfor- 
, tunately the ordinary reader is neither 
thoughtful nor logical, however estimable he 
or she may be in character or disposition. 
Nor is this in itself a reproach. Such is the 
speed and tension of modern life that much 
has to be taken for granted by those who are 
inclined to be meditative. How can it be 
otherwise with people who are without such 
tendency? 

To a large part of the public therefore the 
suggestion that the killing of Americans on 
the Armenian was a bit of outrageous bel- 
ligerent impudence outweighed the narrative 
itself. It was fortunate that the incident 
happened at a time when the country was 



Avoidance of False Issues 51 

confident that the President and the Depart- 
ment of State were zealously guarding its 
interests in the very matter which was thus 
brought to its attention. Otherwise results 
might have been as serious as they are bound 
to be in the future, if more restraint and 
good sense is not shown by those who are 
the purveyors of news. 

War is a terrific proposition, upsetting the 
economic affairs of neutrals as well as bel- 
ligerents, and in direct proportion to its 
f rightfulness. Although not directly engaged 
neutrals are thus of it. It follows that 
though there is a difference in degree, their 
affairs, whenever there is contact with 
warring nations, require the sam.e nicety of 
attention as do those of the belligerent. If 
the latter have censors who are authorized 
to forbid the printing of matter which will 
endanger the state, why should not neutral 
governments, at least, see to it that their 
news agencies have the benefit of such trained 
official cooperation as will eliminate unjusti- 
fiable constructions that often accompany 



52 Neutral Rights and Duties 

war cables? . Such an arrangement need not 
trammel the press nor curtail its freedom. 
That it already exists in some loose manner is 
evidenced by the familiar paragraph, ''It is 
pointed out in administration circles" which 
occurs in metropolitan journals as well as 
country sheets on the morning following an 
episode of international importance. 

The adoption of a few simple measures 
bringing a government expert in touch with 
the editor would not only make such para- 
graphs as hazard a guess at the law, authori- 
tative, but would keep the public from that 
sort of erratic and unreasonable action which 
is fraught with peril. 

We have seen how the story of the Arme- 
nian as first retailed gave no possible ground 
for the heavy leaded headings in the news- 
paper columns of the United States, and 
have noted how injudicious it is for patriotic 
journals to add to the real problems that their 
country is desirous of solving. 

There is another lesson which is furnished 
by the incident to those who are not un- 



Avoidance of False Issues 53 

willing to learn. This has to do with the 
animus of a neutral toward either belligerent 
in matters which have to do with the conduct 
of the war. States in conflict have undoubted 
rights in the matter of hostilities, and may 
reasonably expect that a neutral should 
recognize this in just the same manner that 
it exacts consideration for claims which more 
particularly concern it. Indeed a personified 
belligerent may properly argue — ** Within a 
short time you who are now a neutral nation 
may be swept into the vortex of war. When 
that day comes you will need to have your 
hands free, and to take advantage of every 
fair means to protect your interests. For 
that reason you must be careful not to permit 
any prejudice, however slight, to call forth 
unjust criticism because a blow given in open 
battle affects your personal interests. Other- 
wise you will be gravely handicapped, first 
by rousing resentment on the part of a nation 
from which concession is desired, and second, 
by making it awkward for yourself when your 
time comes to buckle on the harness." It 



54 Neutral Rights and Duties 

has already been shown how necessary it is 
that a neutral which expects to maintain its 
rights should be careful to observe its obliga- 
tions. Due consideration, and a few experi- 
ences like that adverted to, must bring home 
to us the further truth, that a nation which 
lacks poise and balance, that mistakes 
ordinary episodes for affronts, will foul its 
own nest and can never hope to serve 
humanity in the way of progress. 

On the supposition that the Armenian was 
either in the direct pay of the British Ad- 
miralty, or, if not in such service, refused to 
respond to the hail of a war vessel, whether 
submarine or otherwise, there is not a word 
which can fairly be said in criticism of a 
succeeding attack, provided the recognized 
rules of war were not violated. Nor does the 
presence of American neutrals change the 
situation in the slightest. If the facts are 
otherwise, conclusions will also differ corre- 
spondingly. Meanwhile as a neutral country 
the United States should banish any halluci- 
nation as to the probable treatment that 



Avoidance of False Issues 55 

belligerent men-of-war will accord supply- 
ships which refuse to permit visitation or 
capture. They are not going to circle about 
the transgressing freighter, protesting through 
a speaking trumpet or otherwise until the 
vessel is safe in port. To the contrary, they 
are sure to deal vigorously as the occasion 
seems to require. It is probable that Ameri- 
can citizens in general do not understand the 
clear distinction which exists between an 
ordinary freighter, especially when attached 
to the naval service, and a passenger steam- 
ship. It is also not unreasonable to suppose 
that they are ignorant of a warship's right to 
compel visitation. 

Inasmuch as such lack of knowledge may 
involve them in catastrophes, effort should 
be made to provide for their instruction. 
Whether or not this is done, the nation should 
learn to accept the fortunes of those who 
enter any sort of enemy service, as something 
which is not a national concern. 



CHAPTER VIII 

BELLIGERENT USE OF NEUTRAL FLAGS 

"IX 7" HEN reference is made to neutral 

' ' rights and privileges there is sure 

to be critical remark in regard to the use of 

neutral flags by belligerent merchantmen. 

Much of this is most regrettable because 

unreasonable. The keener the people of the 

United States are to preserve high standards 

of neutrality, the more careful should they 

be to eliminate from their program the 

requirement of anything that is patently 

impracticable. 

In a democracy like the United States the 

inculcation of love and respect for the Stars 

and Stripes as the national standard binds 

a people, rapidly becoming heterogeneous, 

together. Too much emphasis cannot be 

given to its proper encouragement. Mean- 
56 



Use of Neutral Flags 57 

time it is probable that the enactment of a 
statute like the flag law of Massachusetts 
has an effect directly opposite to that which 
is intended. This hysterical bit of legislation 
fairly interpreted makes it a lawless act for 
a citizen to own an unabridged dictionary 
which contains a plate with the flags of all 
nations. The latter can have a British or 
German flag printed or engraved upon his 
letter heads, but must beware the use of any 
imprint of the American flag even though it is 
attached to an appeal to support the Federal 
Constitution. The instance is given as fairly 
illustrative of the harm that well-meaning 
folk can do when the end they seek is ad- 
mirable. 

As to the use of the American flag or any 
neutral flag by belligerents, and regarding 
the limit of sane criticism, doubtless such a 
use is improper and undesirable in the usual 
course of affairs. Under the law of nations 
and in accord with the eternal fitness of 
things such a custom can be and should be 
peremptorily forbidden. The Government of 



58 Neutral Rights and Duties 

Great Britain, against which censure is at 
present directed for misuse of neutral flags, 
is acquiescent in this. Thus Sir Robert 
Phillimore, vol. iii., p. 734, gives numerous 
references to the Admiralty reports to show 
that ships are deemed to belong to the country 
under whose flag they navigate, and Oppen- 
heim, vol. i., p. 336, is unequivocal. "It is 
another universally recognized rule, " he says, 
"that men-of-war of every state may seize 
and bring to a port of their own for punish- 
ment any foreign vessel sailing under the flag 
of such state without authority." Oppen- 
heim also calls attention to the Merchant 
Shipping Act of 1894, which legislates to the 
same end. That act, however, goes further 
and may well be referred to here as con- 
veniently introducing a notable exception to 
the general rule. This exception, apparently 
based upon the same international law which 
has heretofore recognized the use of neutral 
or enemy flags as a subterfuge by belligerent 
warships, is one that is directly applicable 
to the present issue affecting the use of the 



Use of Neutral Flags 59 

American flag, and, if valid, should be given 
the greatest weight. 

After stating that a ship shall be forfeited 
whose owners, without warrant, fly the 
British flag, the act continues: ''Unless the 
assumption has been made for the purpose of 
escaping capture by an enemy or by a foreign 
ship of war in the exercise of some belligerent 
right, " When it is remembered that the act 
in question dates back twenty years before 
the present war, that it was the authoritative 
expression of a nation which had won for 
itself the title "Mistress of the Seas," and 
that it may properly be construed as opposed 
to her own interests, we are inclined to accept 
it as an unbiased expression of the reasonable 
judgment of a people versed in Admiralty 
affairs and entitled to serious consideration as 
such. Whether or not this marked departure 
from custom is worthy of adoption as a rule 
of international law is another matter. 

Sir Edward Grey under date of February 19, 
1915, handed the United States Ambassador 
in London a note for transmission to the 



6o Neutral Rights and Duties 

United States in which he expressed himself 
as believing that the British practice was 
similar to that recognized by some other 
nations and ''forbidden" by none. If he is 
right, there is certainly much to be said on 
the side of those who favor this usage, and 
distinct reasons why a neutral people, during 
a time of flux in which it will be difficult to 
secure any agreement on the part of belliger- 
ents, should be cautious in arrogating to 
themselves a right which may lead them into 
inextricable complications. This does not 
mean that they or their government should 
not make recommendations. It was mani- 
festly proper for Washington under date of 
February lo, 191 5, and after the German 
Admiralty declaration of February 4th, to 
suggest the "serious consequences'* to Ameri- 
can vessels that might follow the British 
Government's authorization of the use of 
neutral flags. It was also strictly correct for 
President Wilson's Administration to ask 
both Germany and Great Britain under date 
of February 20th **to require their respective 



Use of Neutral Flags 6i 

merchant vessels not to use neutral flags for 
the purpose of disguise, or ruse de guerre. " 

Had this proposition been cordially re- 
ceived and acted upon, it would undoubtedly 
have been for the direct advantage of Ameri- 
can shipping. Meantime while such repre- 
sentations are most fitting, it is exceedingly 
doubtful if a neutral government can judi- 
ciously push very far beyond the limit which 
is thus suggested because of the personal 
rather than national character of the offense. 

Circumstances and ministerial correspond- 
ence since the opening of this latest, if 
not greatest, of all wars, have developed 
three phases of the question: (i) that which 
has to do with the several and specific cases 
in which misuse of the flag is alleged; (2) 
that which is suggested by the United States 
Government in its proposal that belligerents 
require their respective merchant vessels not 
to use neutral flags, etc.; (3) that which 
arises because of the claim that the British 
Government has instructed its merchant 
fleet to fly neutral flags in the zone patrolled 



62 Neutral Rights and Duties 

by German submarines. Of the three only 
one, and that the last, appears to be of a 
sufficiently objectionable character to warrant 
a breach of amicable relations. 

It is quite conceivable that a neutral might, 
with some spirit, resent such orders as those 
which appear to have been given by Great 
Britain to ships of her great commercial fleet, 
ij the instructions were persisted in after 
protest. This is because the belligerent ag- 
gression would be as positive and direct as if 
neutral territory were violated, and because 
a responsible government can be readily 
called to account for the wrong done. 

The second phase, that which arises when 
a belligerent government fails to comply with 
a neutral request that it officially forbid the 
use of a neutral flag, may be deemed another 
matter. 

Without the evidence of positive admiralty 
orders to commit a breach of international 
comity, a neutral is not justified in presuming 
that a belligerent government is responsible 
for the defaults of its subjects. The same 



Use of Neutral Flags 63 

will be true, whether or not the aforesaid 
belligerent refuses to send out manifestoes 
which are in accord with the formally 
expressed wishes of the neutral. To argue 
that noncompliance is an unfriendly act, and 
to threaten reprisals as a consequence, would 
hardly accord with the dignity of the dis- 
comfited Power or serve its own interests. 
This being conceded, how impossible appears 
the task of satisfactorily meeting and dis- 
couraging such individual practices in using a 
neutral flag when imperiled as are grouped 
under the first phase of the question now so 
seriously debated. 

Let us for the moment presume that the 
United States intends to discourage the im- 
proper use of its flag by belligerent merchant- 
men — that Great Britain not only acquiesces 
in the request of our State Department 
that obnoxious orders be withdrawn, but 
generously complies with the overtures of 
June 20th and forbids British merchantmen 
to use our flag under any circumstances — 
what then? Is there any reason why the 



64 Neutral Rights and Duties 

Mary Jane or any other craft belonging to 
his Britannic Majesty^s marine should not, 
within twenty-four hours after Admiralty 
instructions of the sort referred to are issued, 
fly the American flag when in a position of 
deadly peril? Except for the near presence of 
an enemy submarine, she is alone on the sea. 
Neither a British nor American man-of-war 
is near enough to be cognizant of what is 
happening. If she escapes who shall say that 
the United States which gravely disapproves 
of the practice has failed in its duty to 
Germany or that Great Britain has offended 
the neutrality of the United States? Yet this 
is a fair instance of what happens when the 
American flag is hoisted by a belligerent 
merchantman. It is unfortunate and much to 
be deprecated, but if the Mary Jane's govern- 
ment is not officially responsible, and if a 
United States war vessel is not at hand to 
take due action, it is difficult to understand 
how anything can come from the naive 
insistence of the public that the United 
States prevent the use of its flag. 



Use of Neutral Flags 65 

The case in point selected for illustrative 
purposes only is that of a British ship. 
Exactly the same circumstance would arise 
if a German or Austrian acted in similar 
disregard of government orders. It is doubt- 
ful if a neutral has any other recourse when 
its rights are thus infringed than that which 
may be exacted by one of its own national 
vessels at the time. As for the enemy, why 
is it not sufficiently safeguarded by its 
belligerent rights of search and the machinery 
of the prize courts? 



CHAPTER IX 

TOUCHING NEUTRAL ATTITUDE TOWARD 
CERTAIN BELLIGERENT INNOVATIONS 

\ T O feature of the war which has enveloped 
^ ^ the Eastern Hemisphere in such an 
extraordinary fashion is so fraught with 
interest to the international lawyer as that 
which has to do with blockade, and incident- 
ally with contraband. Much has been done 
in both fields that is plainly illegitimate and 
barbarous. Of such episodes little can be 
said except in severe condemnation. No 
color of right is behind them, and none but 
the disingenuous or prejudiced will excuse 
them. Meantime it is to be regretted that 
the critically disposed have not always been 
just in their animadversions. As has been 
emphatically suggested in these pages, new 
conditions not infrequently so alter the 

66 



Belligerent Innovations 67 

status as to force a change of rules. If this 
were not done, the latter, instead of being 
useful and adapted to ameliorate a trying 
situation, would become not only difficult, 
but dangerous. 

That the neutral should be keenly alive 
both to the breach of law and to attempted 
changes in practice is apparent to a superficial 
observer. Its immediate interests and its 
future policies are so frequently concerned 
that any other attitude would be censurable. 
At the same time the function of its govern- 
ment is quite opposite to that of a belligerent 
state. The latter, because of immediate 
needs which are vital, poses as a reformer, or, 
better, innovator. For the moment it is 
inclined to forget all else, even its duties to 
humanity, and concentrate upon the burning 
issue which has caused it to grapple with its 
adversary. In so doing it impatiently dis- 
cards whatever threatens its integrity, and 
takes advantage of every means that con- 
tributes to its end (only restricting itself, if it 
appreciates the danger to itself of a relapse 



68 Neutral Rights and Duties 

into barbarism, to such novelties as are 
defensible). 

To the neutral, on the other hand, the 
outlook is quite different. Affected by the 
war both in the matter of trade and in such 
friendly intercourse with sister states as is 
mutually beneficial, it is far from being privy 
to the issue; resembling the huckster who 
fears that his apple cart will be overturned 
during a street brawl which has come about 
without his connivance, and is apprehensive 
and alarmed. 

As a consequence, the neutral is solicitous 
that the conventional law, with which both 
it and the belligerents are acquainted, and 
which has the sanction of an earlier genera- 
tion, shall remain intact. This will give it a 
standard of action. It can imagine no other 
way of ordering its affairs and views a 
departure from the tried way with perplex- 
ity. To it via trita is indeed via tuta, and 
any other course means a thousand embar- 
rassments. 

With its interests thus widely divergent 



Belligerent Innovations 69 

from those of the belligerent, the neutral is 
bound to remember two things : 

1 . That while its protecting arm must be 
outstretched to safeguard all that is good in 
existing positive law ; 

2. It must acquire the habit of putting 
itself in the place of the nation at war, and 
seek to understand the difficulties it is trying 
to overcome — its motives — and the argu- 
ments by which it has convinced itself of the 
propriety of its action. A private counselor 
at law is bound in justice to his client to make 
careful study of the opponent's case. No less 
diligence should be expected from a state 
department which, in attempting to look 
after neutral rights, joins issue with the 
ministry of a belligerent. 

In attempting to protect any invasion of 
existing positive law which has to do with 
blockade and contraband, the task of the 
neutral as in other questions affecting in- 
ternational relations, is clearly defined, if 
difficult. There are the decisions of national 
courts adjudicating matters of international 



70 Neutral Rights and Duties 

import — treaties, conventions, reports from 
the prize courts, and other sources from 
which to draw. 

The endeavor to estimate the validity of 
novel belligerent intentions or practice will 
be found more perplexing. If they bear some 
approximation to natural law, as understood 
and already defined by philosophers and 
thinkers, there will be less trouble than 
otherwise. If they are founded on theories 
that have thus far proved too evasive or 
destructive to receive human recognition, 
they can only safely be rejected. In either 
case fair-minded neutrals will often be placed 
in a quandary. At such times and in cases 
where positive law has Jailed to become coherent ^ 
or is altogether silent, the neutral may well set 
up standards which meet the test of an un- 
prejudiced mind and apply them to the par- 
ticular cases which come to its attention, not 
necessarily for the purpose oj reaching a final 
conclusion, hut in an endeavor to clear the air. 
That there can be no impropriety in a 
neutral's so doing, especially when dis- 



Belligerent Innovations 71 

cussing contraband and blockade, is suggested 
by the action of a most eminent international 
lawyer, who assigns his treatment of this 
subject to that section of his authoritative 
book which treats upon the law of neutrality 
— "on account of the practical importance 
of blockade for the interests of neutrals/' 

Such a standard has already been suggested 
in these pages. It is that of justifiable 
Dominion or Sovereignty. Does the belliger- 
ent base its departure from accepted ways 
upon a defensible extension of that supreme 
authority which all states accorded each 
other within their own bounds in the days 
when the law of nations had its beginnings? 
Squaring with "the reason of the thing," the 
query is particularly adapted to the discussion 
of belligerent interference with neutral well- 
being through shutting off trade with a given 
coast or the seizure of supplies destined to 
enemy use. 

While lexicographers define Dominion in 
different ways, the leading definitions make 
the word indicate — 



72 Neutral Rights and Duties 

" Sovereign lordship or supreme authority" ; 

"The power of governing or controlling"; 

"The right of uncontrolled possession"; 

And, in law, "An act tantamount to an 
exercise of ownership. " 

Dominion sometimes exists by virtue of 
Right alone. Generally, however, it is ex- 
ercised by Might. If this Might is without 
Right, and is consistent and constant, it must 
be conceived of as holding its dominant 
position by force. If, however. Might is 
coupled with Right, it presents an infinitely 
better ground for recognition, even if selfish 
interests block immediate indorsement. It 
is this sort of justifiable or vindicable Domin- 
ion which a neutral Power may well have in 
mind when drawing conclusions as to the 
decrees and performances of a belligerent. 

Let us suppose that the belligerent under 
remonstrance has broken the positive law of 
nations; claims that the latter is obsolete; 
or alleges that it is above the law. What is 
the neutral to do? Its protests are without 
weight as far as any juridical system is 



Belligerent Innovations 73 

concerned. It is equally useless to appeal to 
the law of nature, to ethics or economics. 
If the belligerent makes humanity synony- 
mous with natural law, it will claim that its 
aggressive acts are humane, because they 
conserve the interests of its people. If, on 
the contrary, it recognizes Might as one and 
the same with law, it will continue to work 
out its own ends, just as long as it is per- 
mitted so to do. In neither case, therefore, 
does the neutral get a hearing. 
■ Thus thwarted, is there any better course 
for the neutral to follow than to apply the 
gauge it has selected and consider the ''reason 
of the thing" in somewhat the following 
manner : 

The offending belligerent claims Dominion, 
rightfully or wrongfully, in some specific 
matter pertaining to blockade or contra- 
band. Two questions are presented: 

I. Is the beUigerent correct in its con- 
clusions? Does it control (have dominion 
over) the mouth of a given harbor, a given 
coast, a given zone, a given area of sea in 



74 Neutral Rights and Duties 

which its war-ships happen to be operating 
in a manner that is without precedent? If it 
does not, it is acting without any authority, 
unless in certain contraband cases it may be 
that authority which comes from the law of 
nations which it refuses to obey. 

2. If the belligerent does control or domi- 
nate the aforesaid section, does it do so by 
right or by sufficient color of right to enable 
it to defend its course on the ground of fair 
conquest or such occupation as is sometimes 
permitted by all nations in areas dominated 
by no one of them? If so, it deserves con- 
sideration. If it does not, it is without 
standing in court, and need only be consulted 
by the neutral as far as the latter's conven- 
ience permits. No matter how formal the 
pronunciamentoes of the belligerent, or 
vicious its engines of war, it is in no position 
to object to an aggressive neutral policy, 
and as long as human reason plays a potent 
part in human affairs will incur the present 
condemnation of mankind and occupy an 
unenviable place in world history. 



CHAPTER X 

A FURTHER WORD AS TO JUSTIFIABLE 
DOMINION 

A S suggested in the last chapter the neutral 
^^ may well rest back upon rational stand- 
ards in times when positive law is in abeyance 
and natural law so diversely interpreted as 
to fail to be of use. In so doing it is like an 
unshackled person. On the one hand those 
bonds of positive international law which do 
not accord with reason and which were 
imposed upon it during the dark period of 
belligerent dictation are cast off. On the 
other — it is free as a sovereign state to follow 
the dictates of conscience as indorsed and 
supplemented by its best reasoning faculties. 
Such part of the positive law of nations as is 
based upon the eternal principles of natural 

law remains to it, whether recognized or not. 
75 



76 Neutral Rights and Duties 

Meantime it is in a position with other neu- 
trals to insist upon its cardinal rights. 

The results ought to be fortunate in the 
extreme. Many have fallen into the habit 
(and among them learned professors) of 
saying that international law has been 
shattered by the existing turmoil, and in a 
sense they are correct, but if as a result a 
revised law of nations which more nearly 
accords with divine justice is to take the place 
of an arbitrary code drafted by war barons, 
the world will have cause to rejoice. It is 
only in this way that it can bring about con- 
ditions resembling those desired by the 
pacificist. 

These preliminary observations have been 
made in the hope that such as are relevant 
may help in the examination of problems that 
are exceedingly difficult to solve. Hereto- 
fore we have had mostly to do with the open 
sea, on which the lawmakers have said all 
nations, except for the adoption of trammeling 
custom, are on a par. Now we are approach- 
ing the sphere of normal belligerent activities 



Justifiable Dominion 77 

and are to consider the right of a fighting 
nation to guard its own coast and posses.sions 
and to capture or control those of the enemy. 
In this field which embraces the doctrine of 
blockade, and what may be claimed to be a 
corollary of that doctrine, contraband of war, 
the belligerent looms large, and the neutral 
becomes a less compelling figure. A man 
may take himself very seriously when requir- 
ing his contentious neighbors to keep off his 
domain and to avoid blocking the avenues 
thereto. It is quite another matter for him 
to play the autocrat in an adjoining and 
quarrelsome bailiwick. Why? Presumably 
because in the one he possesses the attributes 
of lordship, which he lacks in the other. This 
lordship, whether it arise through possession 
which has been acquiesced in or by record 
title, is generally accepted among men, 
whether by intuition or an exercise of pure 
reason, as sufficient to justify a citizen's atti- 
tude in one case and to impugn it in the other. 
Is there any reason why there should be 
other standards for nations? It is on the 



78 Neutral Rights and Duties 

presumption that there is not that the sug- 
gestion has already been made that a neutral 
which is impressed by the apparent exercise 
of efficient dominion by a beUigerent, should 
heed such of the latter 's warnings not to 
approach certain coasts or perform certain 
acts as are, to its mind, based upon rightful 
authority. In deciding upon the lawfulness 
of these commands the neutral will not be 
troubled when it comes to the consideration 
of belligerent acts of dominion within the 
latter's land boundaries; in such conquered 
territory as is securely held and administered 
by its armed forces; or on the ocean-going 
ships which rightfully fly its flag. 

Thus far, as has been shown in discussing 
the rights of neutrals on the high seas, bel- 
ligerent supremacy is conceded. Difficulties 
will arise, however, when the great water- 
ways of the world are in question. The test 
is the same, but there has been such looseness 
in its exercise and such irrational adherence 
to a practice which no longer satisfies the 
principle that introduced it, that the air is 



Justifiable Dominion 79 

entirely befogged. A fog is frequently dis- 
pelled by a fresh westerly wind. What 
appears to be murky and unsatisfactory in 
the matter of controlled waters ought equally 
to disappear by a new application of the 
principle of absolute and justifiable dominion 
on the sea, which was bound in swaddling 
clothes in the days when muzzle-loading 
cannon defended harbor forts and wooden 
ships-of-war enforced respect for the state 
they represented. 

With an absolute revolution in the matter 
of ships and guns the time has certainly come 
to dispense with the aforesaid swaddling 
clothes even if it takes a surgical operation, 
or else seek out a new principle. The mo- 
ment is fortunate because the necessity of 
belligerents has led them to so neglect rules 
uniformly acknowledged by civilized states 
as to partly enfranchise neutrals. These 
latter are as a consequence freer to adapt 
their own policies so that the latter will 
square with any defensible regulations that 
war powers may enact. 



8o Neutral Rights and Duties 

In doing this, with full conviction that 
justifiable dominion is the only ground upon 
which any nation may arrogate to itself the 
sovereignty of waters about its own or enemy 
coasts, we may perhaps expect that one 
broad, if arbitrary, exception will be made 
to any nation's claim — that is, the right of 
unimpeded passage by neutrals in their inter- 
course with each other through any such 
broad spaces of sea as are the avenues of world 
trade, and may be fairly viewed as part of the 
great sheet of water which encircles the globe, 
even though such spaces are subject to con- 
trol. When this is allowed why should not 
the neutral, not as a neutral but as a sover- 
eign state, affirm one of two things: (i) 
That inasmuch as it is in a position with its 
ships and fortresses to absolutely command 
much larger spaces of water about its coast- 
line than was practicable a generation ago, 
it proposes so to do; (2) that it is prepared 
in an international convention to waive such 
rights as unquestionably belong to it and 
accept an arbitrary sphere of control which 



Justifiable Dominion 8i 

shall also define and limit the sovereignty 
of all states. 

If it chooses the former course, it is bound 
to accord to others what it claims for itself, 
and will at once find its relations to belliger- 
ents, both in the matter of blockade and 
authoritative zone, so modified and changed 
as to bear no resemblance to what they were 
under the positive law of nations as under- 
stood by the members of the Hague Confer- 
ences. If it chooses the latter, pending such 
time as will again bring the nations in con- 
vention, it will either have to champion and 
perhaps fight for part of a code that Powers 
in the stress of events claim to be outworn 
and ineffective, or submit to various and 
trying interim experiences. 

Are there fallacies in these suggestions? 
It would not be surprising if there were. 
When one endeavors to think constructively, 
elements which should have attention fre- 
quently escape notice. Meanwhile let us 
hope that a frank discussion of the limitations 
of state sovereignty may prove at least 



82 Neutral Rights and Duties 

helpful to a better understanding of questions 
appertaining to blockade and later to con- 
traband. 

Whatever the shortcomings of the present 
argument, it may be confidently affirmed that, 
except on the ground of common consent, 
present-day belligerents cannot long be held 
down to an observance of the rules of block- 
ade as defined and practiced since the 
American Civil War, nor neutrals be required 
to submit to certain features in the existing 
law of contraband. 



CHAPTER XI 

BLOCKADE 

DHILLIMORE states — volume iii., page 
* 473 — that ''Among the rights of bel- 
ligerents there is none more clear and incon- 
trovertible, or more just and necessary in 
the application, than the one which gives 
rise to the right of blockade." 

While that eminent lawyer in arriving at 
this conclusion unquestionably places great 
weight upon precedents and the opinions 
of courts and commentators, quoting Grotius, 
Bynkershoeck, and Vattel at length, and di- 
rectly stating that there is no subject of 
maritime or international law upon which 
jurists of all nations are so unanimous and 
precise in their opinions as upon the right 
and law of blockade, he yet does not hesitate 

to affirm — volimie iii., page 474 — "that a dec- 
83 



84 Neutral Rights and Duties 

laration of blockade is a high act of sovereign 
power." 

There is no doubt that a neutral, whether 
or not it choose to consider itself as released 
from all obligations to observe the positive 
law of nations because of the derelictions 
of others, should regard all declarations of 
blockade as such, viz., high acts of sovereign 
power. It will then, if the acts are warrant- 
able (within the rightful province of the 
belligerent), give them the same considera- 
tion that it accords, as a matter of course, 
to all the legitimate performances of a sover- 
eign state. Thus concluding and thus acting 
by the exercise of reasoning faculties, and 
without necessary reference to precedent, it 
recognizes the fact — 

1. That when other states are unable to 
peaceably settle difficulties arising between 
themselves they will go to war. 

2. That as a consequence of war each of 
the belligerents will endeavor to impose its 
sovereignty upon such possessions of the 
other as it may control. 



Blockade 85 

3. That when such enemy sovereignty is 
extended over conquered enemy territory or 
over the waters which wash enemy coast line 
or flood enemy harbors, it is a valid exercise 
of dominion to which the neutral as a neutral 
must show the same consideration as it 
requires for itself in the field of its own sover- 
eignty. 

This discussion regarding the righteous- 
ness or rightfulness of blockade, and the 
controlling characteristic which makes it 
authoritative to neutrals, whether they are 
released from precedent or not, naturally 
follows certain propositions already advanced 
for the use of a neutral Power whose rights 
under the law of nations have been ignored. 
At the same time it properly antecedes a 
more formal consideration of a subject which 
never was of greater importance than at 
present. 

Referring now to the text writers, we find 
that blockade, which as a belligerent right 
is hardly second to belligerency itself, is 
defined by Oppenheim (the latest authority), 



86 Neutral Rights and Duties 

in the second edition of his valuable treatise, 
as "the blocking by men-of-war of the ap- 
proach to the enemy coast or a part of it for the 
purpose of preventing ingress or egress of 
vessels of all nations. " It will be noted that 
Oppenheim's book was published by Long- 
mans, Green and Company in London in 1912, 
three years prior to the British Orders in 
Council which have caused some Englishmen 
as well as many neutrals much apprehension, 
and that it fairly sets out the consensus of 
authority up to the date of its appearance. 
In so doing it specifically and necessarily 
limits blockade to the investment of "enemy 
coast or a part of it," and is in line with 
Article I. of the Declaration of London, 
"Le blocus doit toe limite aux ports et aux 
c6tes de Tennemi ou occupes par lui, " which, 
ratified or unratified, has the standing which 
James Brown Scott gives to those clauses 
of the Hague Conference to which nations 
attached reservations. Dr. Scott says — see 
Introduction to The Hague Conventions and 
Declarations, published by the Carnegie 



Blockade 87 

Endowment — "Failure to ratify is merely to 
be regarded as the rejection of a codified text, 
not as the rejection of principles of interna- 
tional law, which no Power can reject without 
excluding itself from the society of nations. " 

If the definition is a correct one the rul- 
ings of the Conference are authoritative, 
and we are right in our claims set out in the 
last paper, that any act of dominion by a 
belligerent on the high seas nearly adjacent 
to its coast must by the reason of the thing 
yield to the prior and controlling right which 
lies in the body of neutral states it excludes, 
to traffic with each other; and the act of the 
British Government, as far as it is interpreted 
as authorizing the blockade of neutral ports, 
(however amicable its intention,) must have 
been taken without serious expectation that 
it could be defended if challenged, and can- 
not be cited as a valid extension of any 
existing principle. 

This reference is made to a special act of 
Great Britain, which is claimed to be nothing 
more than an adaptation of an existing and 



88 Neutral Rights and Duties 

reasonable rule to present conditions, in order 
to emphasize the necessity of a neutrars 
discouraging all such innovations if it wishes 
to avoid pitfalls that may be its undoing. 

Bearing in mind, then, the necessity of 
excluding any unnatural interpretations of 
the given definition of blockade, and espe- 
cially such as directly contradict its obvious 
meaning, the student can advantageously 
review certain aspects of the doctrine. 

The Declaration of London of 1909 sum- 
marized conclusions generally admitted at 
the time of that conference in twenty-one 
articles. These include the definition already 
given and statements which are suggested 
by the following recapitulation: 

Art. 2 — Blockade must be effective. 

Art. 3 — It is a question of fact whether or 
not blockade is effective. 

Art. 4 — Blockade is not raised by the 
temporary dispersion of a fleet owing to 
stress of weather. 

Art. 5 — Blockade must be impartially 
exercised. 



Blockade 89 

Arts. 6, 7 — Exception ought to be and is 
made in the case of neutral ships-of-war and 
vessels in distress. 

Arts. 8, 9, 10, II, 12, 13, 16 — ^To be obliga- 
tory a blockade should be declared and noti- 
fied by a competent authority, fixing the 
date of commencement and indicating the 
geographical limits. If the required for- 
malities are not observed in the original 
declaration a new announcement must follow, 
and in any case neutral ships in port at 
the time of notification are to have special 
consideration. 

All neutral Powers, as well as the local 
authorities, must be notified by the blockad- 
ing Power or the commander of its squadron. 

There must be distinct announcement in 
case blockade is extended or renewed after 
suspension. 

Special treatment is to be accorded ships 
not informed of the existing blockade, and 
neutrals must be notified that a blockade is 
discontinued in case it is voluntarily relin- 
quished. 



90 Neutral Rights and Duties 

Arts. 14, 15, 17, 19, 20, 21 — ^A neutral ship 
with actual or presumed notice of blockade 
may be seized and confiscated. 

Right of seizure should be limited to the 
field occupied by the blockading squadron. 
Exceptions to the right of seizure favor the 
neutral vessel in case the latter passes through 
a blockading squadron on its way to an un- 
blockaded port, and favor the blockading ship 
in cases where the chase of an outward bound 
neutral ship is continuous. 

Art. 18 — ^A blockading force must not bar 
access to a neutral port. 

It will be noticed that these articles, pre- 
pared after exhaustive study, naturally divide 
themselves under comparatively few headings, 
which call attention to the requirements of 
blockade, such as effectiveness, limit in time 
and space, notice and declaration, the penalty 
of breaking blockade, and belligerent rights 
and duties prior to and in connection with the 
imposition of the same; the attitude of a 
blockading squadron toward neutral coun- 
tries and vessels not directly chargeable with 



Blockade 91 

breaking into an enemy port through the 
cordon it has established. 

These probably comprehend all ordinary 
phases of the subject, and if given separate 
and sufficient attention should advise a neu- 
tral of its rights and duties in the premises. 



CHAPTER XII 

EFFECTIVENESS AS A REQUISITE OF BLOCKADE 

DLOCKADE in order to hold neutrals 
must be effective. That is what the 
savants have agreed since the Paris Con- 
vention in 1856. That is what the Decla- 
ration of London affirmed in 1909. 

Prior to the former date the great nations, 
in spite of the statements of the Armed 
Neutralities, seemed obsessed with the idea 
that belligerency was the normal condition of 
states and that international law reflected 
the wishes of belligerents. For this reason 
the so-called "paper blockade,*' which inter- 
fered with neutral trade, by proclamation 
received consideration until the nineteenth 
century. It was doubtless in the discussions 
which followed neutral endeavor to articulate 

the conviction that a belligerent must justify 
92 



Effective Blockade 93 

its aggressive action in interfering with the 
former's commerce that the word effective 
was chosen to characterize the sort of block- 
ade that might properly receive neutral 
recognition. 

To the impartial mind the selection reflects 
timidity. At all events it was a blunder. 
Effectiveness ought certainly to be required 
of any blockade that can be defended, but 
effectiveness does not of itself vindicate the 
blockade. 

A robber state may seize and effectively 
hold the property of an abutting nation just 
as a bandit chief may effectively hold the 
personal property he has wrenched from the 
defenseless, or bar the use of a highway to an 
intimidated neighbor. In neither case does 
the effectiveness of the act excuse or explain 
it. 

Since the word effective, coined long since, 
is clearly insufficient and loses its usefulness 
at a time when belligerents are making their 
own rules, it is proper for the neutral, which 
believes that blockade like other belligerent 



94 Neutral Rights and Duties 

acts is only to be recognized as an act of 
justifiable dominion, to substitute the latter 
phrase for the word effective in determining 
its obligations in the matter of a belligerent 
effort to shut off its trade with enemy ports. 
In doing this it will not eliminate the idea of 
effectiveness — this is included in the larger 
designation and is an element without which 
any endeavor to control enemy coasts must 
prove futile. 

*'A blockade de facto should be effected by 
stationing a number of ships and forming as 
it were a circumvallation round the mouth of 
the prohibited port, where, if the arch fails in 
any one part, the blockade fails altogether." 
(The Arthur — i Dodson, p. 423.) That is 
the way a much-quoted authority expressed 
the general idea of an effective blockade in the 
days when ships-of-war were but feeble instru- 
ments of the execution of a nation's will when 
compared with the units which compose a 
modern fleet. Old-fashioned as the rule now 
appears to be in the face of later practice, it 
is yet exceedingly suggestive, as indicating 



Effective Blockade 95 

the closeness of the watch which many have 
declared that a blockading squadron is 
expected to keep over the coast which it 
patrols. 

That there is another and more liberal point 
of view is apparent to all who are informed of 
the blockading of 2500 miles of Confederate 
coast during the American Civil War by 
four hundred ships of all sorts. Impossible as 
it was for the Union navies to shut out all 
blockade runners, the cordon which they 
maintained was sufficiently masterful to make 
an attempt to pass through exceedingly 
hazardous. Neutral states therefore recog- 
nized the act of the Federal Government as 
entitled to the same degree of consideration 
that the public in a great city accords the 
police lines that are thrown about a given 
municipal district which is the scene of a 
conflagration or tumult. They were con- 
scious that individual ships might safely slip 
through the Hne of patrolling gunboats — 
indeed they frequently did so — just as single 
citizens pass the limits from which they are 



96 Neutral Rights and Duties 

refused admittance without having their 
heads broken in the attempt, but the risk 
was sufficient to make the venture imprudent, 
and it being within the province of a belliger- 
ent to impose such restriction as had been 
formally proclaimed, they assented to the 
blockade as authoritative. 

Differing as these two theories do regarding 
what is required to make a blockade effective, 
it does not seem as if there were any sufficient 
antagonism to explain such a conflict among 
publicists, as is apparent. Underlying each 
is the same vital principle which, crudely 
expressed in the books, makes it necessary 
that a belligerent in imposing a burden upon 
the commercial world shall make such con- 
tinuous demonstration of its power to enforce 
its decrees as will command attention. 

This is happily recognized in Article 3 of 
the Declaration of London by the positive 
affirmation — "La question de savoir si le 
blocus est effectif est une question de fait." 
Would that every statement of an interna- 
tional convention were as clear and incisive, 



Effective Blockade 97 

and that all the rules which have been enacted 
by nations in conference had been as flexible 
and adapted to all periods! If it is to stand 
hereafter (and it must if reason is to be the 
arbiter), it will be found equally adaptable 
to a period in which a nation's military re- 
sources upon, above, and below the surface 
of the sea far transcend those now existent, 
as it is to present problems. Already it is 
serving the good purpose, quite irrespective 
of its standing as part of an unratified de- 
claration, of bringing clearly to men's 
minds the fact that precedents which refer to 
the agencies used by a belligerent to enforce 
its will are only valuable when coupled with 
a clear appreciation of the limitations of the 
epoch to which they refer. 

Never did the nations stand in greater need 
of such declaratory and cautioning words as 
those drafted by their emissaries as the ex- 
pression of world opinion just prior to the 
greatest of wars. To states in arms they 
carry a positive message, which says in 
effect: *'0n the hypothesis that you are 



98 Neutral Rights and Duties 

within your belligerent rights, do not fail 
to remember that although your ships with 
auxiliary agencies can command much wider 
areas off enemy coasts than the vessels of 
former years: 

" I. You are pitted against enemy ma- 
chinery in the shape of fortress guns, mines, 
vessels, and all manner of defensive in- 
ventions. 

"2. As your fleets push their outer lines 
into ever widening zones of sea, they must 
expect to contest with the elements for a 
certain sovereignty which nature has not 
yet conceded to man. 

"3. That the swift vessels of commercial 
nations not involved as direct partisans in 
the war are not to be as easily policed as the 
sailing craft of earlier times. 

'* 4. And that nothing less than absolute 
ability to control these forces as a matter of 
fact will be accepted by the neutral world as 
an effective blockade.'* 

To neutral Powers the message is brief but 
crammed with significance: "If a belliger- 



Effective Blockade 99 

ent acting within its rights is, as a matter of 
fact, dominating waters off an enemy coast, 
your shipping must avoid such seas, otherwise 
it will be confiscated. " 



CHAPTER XIII 

SOME PRELIMINARY REMARKS REGARDING 
RECENT INTERFERENCE WITH NEU- 
TRAL TRADE 

'X'HOSE who have thought of the science 
■*• of public international law as something 
academic and impracticable must have had a 
sharp awakening in the last twelve months. 
To their mind municipal law had an honor- 
able standing because its rules and require- 
ments must be obeyed, but the law of nations 
could have nothing to do — and would have 
nothing to do — with their personal welfare. 

If millions of such have not been disabused 
of their opinions since August, 19 14, it is 
because they are without an appreciation of 
the great events which are affecting all 
civilized peoples. For crisis has followed 

crisis, and state papers affecting races have 
100 



Interference with Trade loi 

been interchanged with unparalleled activity 
— each several issue in turn being shaped in 
accordance with international law or judged 
by its precepts. Among these none has been 
weighted with more significance for the 
population of great states than those which 
have had to do with blockade and certain 
belligerent rights connected therewith. 

The average citizen has long understood 
that he frequently suffers and is imposed 
upon because of a failure of the police and the 
courts to vindicate his rights. 

Now if we are to believe Imperial Chan- 
cellors, every individual in Germany, Austria- 
Hungary, and Great Britain is to be seriously 
affected because of enemy policies which are 
claimed to be breaches of the law of blockade, 
breaches which can only be prevented by 
force of arms and such a crystallization of 
neutral opinion or affirmative action as will 
command the attention of the aggressor. 

Thus international law has become a 
matter of very serious import to men and 
women in Europe. That it is already such 



I02 Neutral Rights and Duties 

to the citizen of the United States is apparent 
to all that are conversant with the communi- 
cations which have passed between Washing- 
ton and European chancelleries, and who 
have heeded the manner in which prepared- 
ness for action is being discussed. 

It is this fact, viz., the concern of the 
individual in the underlying principles of 
law, whether codified or not, as it affects the 
nations, that makes it wise, first to review 
existing practice and discuss broad grounds 
of action when practice has been negatived 
or is lacking; then to acquaint ourselves with 
actual problems and come to such conclusions 
as reason shall dictate. Following such a 
course in reference to the doctrine of block- 
ade, we have noted the fact that blockade 
is an act of dominion over coasts and in 
waters where a belligerent exercises lordship 
as by conquest; recapitulated the rules 
approved by the Declaration of London; 
marked the bounds by which belligerent 
activities are limited, and called attention to 
the fact that new conditions may vary 



Interference with Trade 103 

practice without changing principles. We 
are therefore prepared to take up and 
impartially comment upon the present status 
in the North Sea, the English Channel, and 
the waters surrounding the British Isles as 
it affects the United States and all neutrals. 
That it is extraordinary, even when compared 
with the startling war measures that have 
not infrequently stirred the people of earlier 
generations, will not be gainsaid, and there 
is great occasion for contentment because 
President Wilson's Government has handled 
itself so admirably, stating and restating 
those parts of the law of nations which are 
applicable thereto with accuracy, and refus- 
ing to concede the propriety or lawfulness of 
acts based upon interested interpretation or 
so-called extensions of familiar principles and 
necessity. 

To understand the situation and get all the 
facts in mind which have any connection 
therewith it is necessary to recall : 

I. The earlier correspondence of the war 
period which has passed between belligerent 



I04 Neutral Rights and Duties 

governments and the State Department of 
the United States ; 

2. The direct proclamations of belligerent 
Powers regarding war areas ; and 

3. Further communications which have 
been exchanged in an endeavor to clarify or 
justify official action or position. 

Of intense interest were the notes inter- 
changed in regard to the Declaration of 
London which cover the dates between 
August 6 and October 24, 1914. These 
included the inquiry from Washington as to 
whether the conclusions of the Naval Con- 
ference were to be regarded as applicable to 
the opening conflict and the suggestion that 
inter-agreement might prevent grave mis- 
understandings, the replies from belligerent 
states, and the final withdrawal by the 
American Government of its overtures. It 
will be remembered that the Central Powers 
indicated willingness to conform to the 
Declaration of 1909, provided the enemy 
did likewise, and the responses from England 
and France were acceptances subject to 



Interference with Trade 105 

certain modifications and limitations; also 
that the returns were such as not only made 
it appear unwise to the United States to go 
further in the matter, but were sufficiently 
defined to indicate that the Allies — for 
Russia followed the action of Great Britain 
and France — felt that the ratification of the 
Declaration would be an embarrassment to 
them. Indeed, in the memorandum attached 
to the British Government's communica- 
tions to the American Ambassador in London 
are direct intimations that Great Britain 
believed the enemy would probably receive 
vast quantities of supplies through such 
neutral ports as Rotterdam, and that adher- 
ence to the defined laws of the Declaration 
regarding blockade, conditional contraband, 
and ultimate destination of contraband would 
work disadvantageously to the Allies; a fact 
that appears to have been so patent to 
Germany and Austria-Hungary as to have 
made those governments careless in regard 
to the indorsement of the rules referred to, 
provided they were adopted by the enemy. 



io6 Neutral Rights and Duties 

But little time interposed between the 
withdrawal of the United States of its 
suggestions regarding the Declaration of 
London and ofhcial protest by this govern- 
ment against restraints upon its commerce. 
The final letter touching the Declaration was 
dated October 24, 19 14. On the 26th of the 
following December the Department of State 
filed a formal protest against British treat- 
ment of cargoes bound to neutral ports, and 
received a polite reply which, with the 
supplementary letter that followed, reflected 
the anxiety with which the Allies viewed the 
manner in which supplies (that might under 
ordinary circumstances have been legiti- 
mately cut off by naval Powers of such 
importance as Great Britain and its ally, 
France, by extending the list of contraband 
or by a blockade of enemy coast) were 
reaching the enemy through the ports of 
countries whose trade in various commodities 
had increased inordinately. These communi- 
cations, taken in connection with the de- 
tention of various vessels flying the United 



Interference with Trade 107 

States flag, were sufficient to indicate that 
the Allies considered themselves justified in 
so construing the laws affecting "continuous 
voyage" and "search" as to permit them to 
subject neutrals to all the inconveniences of 
a blockade more far-reaching and injurious 
than had ever been attempted. 

They were followed in due course by the 
German proclamation of February 4, 191 5, 
declaring the waters surrounding Great 
Britain and Ireland, including the whole 
English Channel, to be a war zone, and by a 
memorial of the Imperial German Govern- 
ment which affirmed that just as England had 
decreed "the whole North Sea between 
Scotland and Norway to be comprised within 
the seat of war, " so Germany by its proclama- 
tions declares "that it will prevent by all 
military means at its disposal all navigation 
by the enemy in those waters," and warns 
neutral Powers "to recommend to their own 
vessels to steer clear of these waters. " Here 
are two attempts to impose a virtual block- 
ade, neither of which has any standing in 



io8 Neutral Rights and Duties 

positive international law, however inter- 
preted, and neither of which at all appeals to 
the impartial mind as having any resemblance 
to the controlling principles of justice and 
equity. The latter can be abruptly dismissed 
because of its frank lawlessness. The earlier, 
which has now assumed definite form, re- 
quires more particular attention. 



CHAPTER XIV 

THE ORDER IN COUNCIL OF MARCH, I915 

THE attention of the reader has been 
called to the German Declaration of 
February 4, 1915, which initiated the so- 
called submarine blockade, and to certain 
British correspondence and acts anterior 
thereto. Before dismissing the action of the 
Kaiser's Government, which the latter ap- 
pears to have based upon a certain necessity- 
induced by the activities of the British fleet, 
and the *' toleration" of neutrals, it should 
be said: 

1. That no dereliction of a belligerent or 
neutral could justify the extraordinary fea- 
tures which threatened to make the sub- 
marine, as used, a frightful and irrational 
innovation to the terrors of war. 

2. That aside from other characteristics 

109 



no Neutral Rights and Duties 

required to make blockade legitimate, the 
German submarine fleet, far from effectively 
dominating the waters in which the Imperial 
Government has pushed its retaliating and 
military measures against England, which 
would have been requisite to secure the 
attention of neutrals, have done little more 
than maintain a precarious footing. 

3. That neutrals were and are under no 
obligation to pay any attention to the Ger- 
man Admiralty's proclamation of February 
4th, because no principle of law outside that 
of blockade appears to exist or has been 
advanced in modern times by which a 
belligerent can close uncontrolled sections 
of the high seas to neutral vessels without 
raising a casus belli. 

With this brief discussion of the extra- 
ordinary campaign which Germany is con- 
ducting in seas through which all neutrals 
have a right of way, we turn to the British 
Orders in Council, transmitted by the 
American Ambassador March 15, 191 5, after 
a preliminary notice from Sir Cecil Spring 



The Order in Council iii 

Rice dated March i st . It will be remembered 
that a simultaneous decree was issued by 
the French Ministry. Obviously the action 
taken by the Allies is the direct result of the 
natural endeavor of these belligerents to meet 
a situation which was most exasperating. 
With the opening of the war they had found 
Germany to be reasonably independent of the 
commerce between her own and American 
ports. Advantageously located for war 
exigencies, she could practically lock up her 
own harbors and receive such imports as 
were needed through adjacent neutral coun- 
tries o Such action negatived much of the 
offensive value of Great Britain's armored 
fleets, and could not be permitted. Plans 
were therefore devised by the adaptation of 
familiar principles to shut off all merchandise 
reaching Germany and Austria-Hungary 
through neutral intermediaries. These com- 
prehended : 

I . A pushing of the doctrine of contraband 
to such a limit as would make it possible to 
detain contraband whether bound to enemy 



112 Neutral Rights and Duties 

ports or consigned to neutrals who might 
easily transship it. 

2. The seizure of neutral ships within 
given waters and the taking of such craft to 
suitable allied harbors for rigid investigation, 
on the ground that they might have con- 
traband concealed. 

It is not surprising that such measures 
shortly after they were adopted did much to 
discourage the greater part of the trade which 
Germany had built up. With every neutral 
vessel, wherever bound, under the suspicion 
of carrying a consignment for the enemy, and 
of concealing contraband so cleverly as to 
require a more particular search than can be 
effected outside of a suitable anchorage, a 
belligerent fleet can work havoc both with 
the enemy and neutrals. 

It will be recalled that when the United 
States took exception it was politely pointed 
out by Great Britain that precedents of the 
Supreme Court justified the continuous 
voyage theory ; and that ships had become so 
large that (if, for instance, they carried 



The Order in Council 113 

contraband copper concealed in cotton bales) 
they could not safely be examined in deep 
water — arguments which were not accepted 
as convincing. As for the enemy, which 
appeared to have been badly crippled by the 
adoption of such measures, something posi- 
tive seemed necessary, and the submarine 
terror was inaugurated, only to bring in re- 
taliation the definite Order in Council of 
March 15th, already referred to. This 
purports to be a blockade, but is not, as was 
immediately noted by the State Department 
of the United States. Referring to Germany, 
the British declaration recites: "Her oppo- 
nents therefore are driven to frame retaliatory 
measures in order in their turn to prevent 
commodities of any kind from reaching or 
leaving Germany"; and adds, after noting 
that a humane method of enforcement will 
be adopted, "It is not intended to confiscate 
such vessels or cargoes unless they would 
otherwise be liable to condemnation." To 
which, as part of a longer note, the United 
States properly replied March 5th: "While 



114 Neutral Rights and Duties 

it appears that the intention is to interfere 
with and take into custody all ships, both 
outgoing and incoming, trading with Ger- 
many, which is in effect a blockade of German 
ports, the rule of blockade, that a ship at- 
tempting to enter or leave a German port 
regardless of the character of its cargo may 
be condemned, is not asserted. The language 
of the declaration is 'the British and French 
governments will, therefore, hold themselves 
free to detain and take into port ships 
carrying goods of presumed enemy destina- 
tion, ownerships, or origin. It is not intended 
to confiscate such vessels or cargoes unless 
they would otherwise be liable to condemna- 
tion.' The first sentence claims a right per- 
taining only to a state of blockade. The 
last sentence proposes a treatment of ships 
and cargoes as if no blockade existed. The 
two together present a proposed course of 
action previously unknown to international 
law." 

This answer set out those characteristics 
of the British proclamation which made it 



The Order in Council 115 

fall short of what neutral nations might 
properly expect in a declaration of blockade. 
Other objections were summarized by the 
United States Government under date of 
March 30, 191 5, in a communication which 
pointed out the fact that neutral sovereignty 
could not surrender to belligerents unlimited 
rights over neutral commerce within the 
whole European area; insisted that neutral 
sovereignty with certain exceptions suffered 
no diminution in time of war; and complained 
that the limitations placed upon neutral 
shipping by the Orders in Council were "a 
distinct invasion of sovereign rights." 

It is exceedingly fortunate that a great 
neutral Power has taken such high ground. 
Meantime neutrals may rest assured that if 
the issues now joined are ever tried out the 
facts will show that neutral Powers have 
never resigned their rights in certain waters 
now in the so-called war zone, which are 
necessary to their trade; that certain seas 
comprehended in the British Orders in 
Council are absolutely outside of the control 



ii6 Neutral Rights and Duties 

of the allied fleets; that certain other waters 
in which the Allies are maintaining and can 
maintain great fleets are not subject to 
control because of physical conditions which 
nations cannot dominate. 



CHAPTER XV 

SIR EDWARD GREY^S LETTER DEFENDING THE 
BRITISH government's *' ORDER IN 

council" of march, 1 91 5 



'T^HE close examination of an opponent's 
-■■ argument is always salutary. Either 
our eyes are opened to the truth, or we are 
sustained in our position by the realization 
that the other side is resting its case upon 
fallacies and inaccuracies. 

To an unprejudiced citizen of the United 
States the British Order in Council of March, 
191 5, inaugurated a policy which is as un- 
tenable as it is hurtful to neutrals, and it can 
make no difference that the same has been 
adopted with a sincere desire to avoid 
harming non-belligerents as such. We shall 
be surprised if the letter of Sir Edward Grey 

dated July 23d does not confirm him in his 
117 



ii8 Neutral Rights and Duties 

opinion. The official communication referred 
to was transmitted by the American Am- 
bassador the day after it was dated. Among 
other points to sustain his contention Sir 
Edward Grey, whose high quaHty of states- 
manship is generally acknowledged, makes 
the following claims and assertions that may 
be reviewed to advantage. Carefully as these 
grounds for British action are stated, it is 
impossible that anyone will be impressed 
thereby. They do not appeal to reason, 
and one who reads a copy of the origi- 
nal text cannot readily grant more than 
that Earl Grey has honestly noted every- 
thing, whether convincing or not, that can 
be said in support of what the nation he 
represents has undertaken as a matter of high 
state policy. 

I . Necessity. 

"I read the communication from your 
Excellency's Government," says the Foreign 
Minister's note, ''not as questioning the 
necessity of our taking all the steps open to 
us to cripple the enemy's trade, but as 



Defense of British Policy 119 

directed solely to the question of the legiti- 
macy of particular measures.'* While this 
appears to be an endeavor to convince oneself 
that necessity is recognized in the United 
States as excusing an act not otherwise per- 
mitted, it is a naive admission that there are 
those who would limit a nation's use of force 
to operations which are legal. Of course 
there are, and among them the Allies them- 
selves! If it were otherwise, aggressions of 
which they rightly complain would have no 
check, and not only would enemy nations 
repeat violations of law which have been 
criticized, but neutrals themselves, under 
the same plea, would put forward necessity 
as an excuse for unneutral acts. 

It is long since nations found that states 
at issue were each disposed to plead necessity 
as an excuse for deeds that were open to 
emphatic objection. They have therefore 
preferred to give less weight to the cry of 
necessity than to arguments which are ad- 
vanced to prove that an adopted policy is 
legitimate. 



I20 Neutral Rights and Duties 

2. Right of a belligerent to blockade neutral 
ports if no other way presents itself to reach the 
enemy. 

This proposition, according to the British 
minister, rests back upon the rule admitted 
by the United States — that a belligerent has 
a right to blockade an enemy port ; which to 
the mind of the apologist is nothing more nor 
less than "cutting off the sea borne exports 
and imports of the enemy." The argument 
runs somewhat like this, viz. : If you cannot 
get at the enemy port to blockade it, and 
find that the latter is receiving supplies 
through neutral harbors, then you are at 
liberty to blockade the aforesaid neutral 
harbors because you have a right to cut 
off **sea borne exports and imports of the 
enemy." Of course, the objection to this 
presentation of the case lies in the erroneous 
assumption that the right to blockade an 
enemy port is simply a phase of a supposed 
right (which does not exist) to cut off the 
latter's commerce by any convenient means. 
With the elimination of this necessary bit 



Defense of British Policy 121 

of scaffolding, the carefully constructed ar- 
gument must collapse. 

3. That the Civil War blockade of the 
southern coast of the United States offers a 
precedent in so Jar as it was an extension oj 
former practices. 

It is true that the Civil War precedents, 
such as that referred to, marked an extension 
of familiar practices, but it will be difficult for 
the keenest mind to find any analogy between 
American innovations, and that which is 
introduced by the Order in Council which is 
under discussion. To the contrary, students 
of international law, with the cases of the 
Peterhoff and the Springbok in mind, will re- 
call how the Supreme Court of the United 
States recognized the fact that nations are 
limited by unvarying principles, and in 
developing the doctrine of the continuous 
voyage, differentiated between belligerent 
authority to seize contraband and to extend a 
blockade to neutral waters, a practice which 
it refused to countenance. 

4 . Convenience oj neutral ports to enemy use. 



122 Neutral Rights and Duties 

"Adjacent to Germany," says Earl Grey, 
*'are various neutral countries which afford 
them convenient opportunity for carrying 
on trade with other countries." He cites 
Rotterdam as better suited for certain enemy 
purposes than the ports of the latter. It is 
impossible to understand how this juxta- 
position of neutral to enemy harbors gives a 
belligerent any rights whatever over the 
former. If railways and waterways make 
neutral docks available to enemy use, that is 
the other belligerent's misfortune. Austria 
has submitted a memorandum on the United 
States* export of munitions to the Allies, and 
would have it prohibited because the "Cen- 
tral Powers " cannot share in the trade. Here 
is an instance where situation and naval 
preparation favor the Allies. International 
law like municipal law is fixed and cannot be 
adjusted to meet particular circumstances. 
The fact that Germany connects overland 
with nearby neutral seaports gives other 
belligerents no right to adapt existing law so 
as to make this marked advantage valueless. 



Defense of British Policy 123 

5 . That the interception of neutral commerce 
intended for enemy use hy one belligerent^ 
before it has reached or after it has left a neutral 
state, is a justifiable ''counterpoise'' to the 
freedom with which the other belligerent may 
send his commerce across a neutral country 
without prejudicing the latter' s neutrality. 

That such an interception is a ''counter- 
poise" everyone will agree, that it is justifi- 
able cannot be sustained. The neutral Power 
concerned is a sovereign entity. It is for it 
to say what it will permit, and it is perfectly 
free to continue both its inland and overseas 
trade with either belligerent, however useful 
to the latter, and obnoxious to its opponent, 
without other interference than such as may 
arise by reason of its own concession (contra- 
band) or the belligerent blockade of enemy 
(not neutral) ports. 

6. That an extension of the principle of 
blockade is defensible if the latter is thereby 
made effective. 

This is a curious and unusual argument 
that probably few will remember to have 



124 Neutral Rights and Duties 

seen advanced elsewhere. The word effective 
in reference to blockade has to do with the 
physical assertion of sovereignty over enemy 
waters. It is intended to define the quality 
of naval investment. Whether or not a 
blockade actually exists, therefore, depends 
upon pressure from without a port, rather 
than upon conditions within enemy territory 
that appear to result from belligerent at- 
tempts to institute some sort of a blockade. 
If it were otherwise a belligerent might argue 
{post hoc ergo propter hoc) that a failure of 
enemy crops caused by unseasonable weather 
was the direct result of an inconsequential 
demonstration by the said belligerent's ships. 
To blockade neutral ports and claim that any 
following distress of the enemy, even if caused 
thereby, made the blockade effective, is a 
proposition that will not be readily accepted. 
7. That Great Britain is not interfering with 
any trade which she would not have a right to 
close by blockade ''if the geographical position** 
of the enemy was ''such that her commerce 
passed through her own ports ^ 



Defense of British Policy 125 

This is gravely to be doubted. A belliger- 
ent can hardly assume the control over 
neutral shipping that Great Britain is exercis- 
ing in the wSO-called ''zone," without working 
mischiefs quite apart from the embarrass- 
ment caused neutrals by a legitimate block- 
ade. Meanwhile it is not apparent why the 
aforesaid Power should be entitled to exercise 
privileges that would only accrue if geographi- 
cal conditions were absolutely different from 
what they are. 

8: That the so-called blockade only bars 
forbidden neutral trade. 

If this is a fact, and it cannot be overlooked 
that the statement is contested, it does not 
by any means excuse a breach of international 
usage. Even police officers under municipal 
law are restricted in the steps which they 
take to possess themselves of that which 
they are authorized to seize. It is not other- 
wise with nations! 

Such are some of the more important 
points which the eminent British Minister 
makes in his endeavor to justify the Order 



126 Neutral Rights and Duties 

in Council. They can hardly be taken as 
other than a serious attempt of the EngHsh 
leaders to vindicate action regarding the 
validity of which they must entertain grave 
doubts. Three facts support the conclusion 
that the aforesaid statesmen are not alto- 
gether at peace : 

1. The pains which they have taken to 
assure neutrals of their desire to construe 
the unfortunate decree as liberally as is 
practicable. 

2. Their own acquirements which make 
it improbable that they can long remain self- 
deceived. 

3. The recent and significant declaration 
which makes cotton contraband, which may 
be a step toward extricating themselves 
from an untenable position. 



CHAPTER XVI 

PRELIMINARY COMMENTS ON THE LAW OF 
CONTRABAND 

/CHANCELLOR KENT briefly but suffi- 
^^ cientiy defines contraband of war as 
goods which neutrals may not carry in time 
of war to either of the belligerent nations 
without subjecting themselves to the loss of 
the goods. He might have added that the 
law of contraband works as much mischief 
for neutrals as does the law of blockade, and 
is as arbitrary as the latter is rational and 
explicable. For where blockade is explained 
by a logical extension of belligerent sover- 
eignty over waters formerly within the 
sphere of enemy influence, contraband (recog- 
nized by the nations as equally restricting 
their freedom of trade) rests on nothing but 

the self-assertive and dogmatizing insistence 
127 



128 Neutral Rights and Duties 

of war powers so long acquiesced in as to 
make it respectable. 

It is one thing for the individual, who has a 
private quarrel with another, to insist that 
third parties shall not make him relax a 
strangle grip upon his opponent. It is 
another thing to hold up and search any 
individual found in the immediate neighbor- 
hood of the enemy's residence and seize such 
of his belongings as may be intended for 
enemy use. In the one case the combatant 
resents interference with an immediate 
exercise of a sovereign right to do to another 
what the other would do to him if he had the 
power. In the second instance he interferes 
with the sovereign rights of third parties 
who are as privileged to maintain peaceful 
relations with the enemy as he is to follow a 
different course. 

That the situation is precisely similar in 
the matter of independent states must be 
admitted by those agreeing with inter- 
national lawyers who are in accord touching 
two points: (i) That each self-governing 



Regarding Contraband 129 

nation is possessed of absolute sovereignty — 
a self-evident statement — and (2) that 
Powers not at war have a right to trade with 
belligerents within spheres not under enemy- 
control, a proposition which seems to have 
the unquestioned indorsement of the Supreme 
Court of the United States as set out in the 
Bermuda, and of Lord Stowell, who, in the 
Immanuel (2 C. Rob. Adm. Rep., p. 198), 
goes so far as to say: "The general rule is 
that the neutral has a right to carry on, in 
time of war, his accustomed trade to the 
utmost extent of which that accustomed 
trade is capable." 

If the analogy is a proper one, and if the 
statements thus made are correct, how can 
a belligerent justify its aggressive inter- 
meddling with neutral activities? Chiefly 
on the ground of precedent, which in inter- 
national and in municipal law is invaluable 
as a guide to the cotuts, but which while 
lending stability to human institutions has 
not infrequently blocked progress because 

founded on wrong premises. 
9 



130 Neutral Rights and Duties 

To the time of Grotius, modern as well as 
ancient states had either submitted to the 
dominant will of an overbearing Power, or 
looking upon each other suspiciously, avoided 
the acceptance of other rules affecting their 
mutual relations than those which were 
thrust upon them. Thus the most warlike 
nation, selfishly pushing its own interests, 
had always carried weight in world councils 
proportioned to its aggressive spirit; and 
laws which it did not dictate were shaped by 
peoples who avoided intercoiurse except when 
trying out their grievances by arms, and 
who were accustomed to look upon neighbor- 
ing countries, that were not in alliance, as 
directly or indirectly serving the purposes of 
the enemy. It is not surprising that with 
human society thus minded, the individual 
rights of states were as much if not more 
neglected than the right of persons. Treaties 
that were made and treaties that were 
written disregarded the non-combatant except 
to lay upon it such burdens as the selfish 
interests of belligerents might exact, and a 



Regarding Contraband 131 

body of law came into being based upon 
theories which are discredited to-day. 

Incorporated in this compendium of legal 
requirement is the doctrine of contraband — 
now assented to for so many years, either 
through fear or as a voluntary waiver of 
right, that until some modification is gen- 
erally recognized, it must be accepted in its 
broad provisions as reflecting the wish of the 
nations. 

Positive law then is on the side of the 
belligerent who pushes the law of contraband 
to its limit, however the fact negatives 
propositions as to national sovereignty and 
freedom. Nor is the latter without certain 
arguments to reinforce its legal position. 
One of these rests upon the theory that a 
combatant which joins in a fierce struggle 
with an opponent may properly view as in- 
terested and inimical any act of a neutral, 
however trivial, which strengthens the enemy. 
Phillimore gives two quotations to illustrate 
certain aspects of this position. 

The first is from Demosthenes: "That 



132 Neutral Rights and Duties 

person, whoever he be, who prepares and 
provides the means of my destruction, he 
makes war upon me, tl^ough he have never 
cast a javelin or drawn a bow against me." 

The second is from Lord Grenville in the 
letters of Sulpicius: "If I have wrested my 
enemy's sword from his hands, the by- 
standers who furnish him with a fresh 
weapon can have no pretense to be considered 
as a neutral in the contest." 

With such pleas before him the reader is 
apt to accept the contentions of the old 
publicist who refused to recognize any such 
thing as neutrality, and who claimed what 
undoubtedly is measurably true: (i) That 
every non-combatant is prejudiced for or 
against either party to a struggle; and (2) 
that this attitude brings all so-called non- 
combatants into the melee on one side or the 
other. 

The trouble with this claim, which involves 
third parties in a war that is not of their 
making, is that the neutral's right to trade, 
except as hampered by law, is worthy of 



Regarding Contraband 133 

greater consideration, even if that is done 
which indirectly benefits the enemy, than is 
any belligerent right to stop such neutral 
intercourse with the enemy as it believes to 
be disadvantageous. 

It would be well enough if war was 
accepted either by natural or positive law 
as representing the normal status of the race. 
Then a belligerent might properly set out 
that its interests as such were supreme, and 
that neutrals must subordinate their concerns 
to those of a nation which had upset the 
economic balance of the world. 

Fortunately the facts are different now, 
whatever they were aforetime. The twen- 
tieth century views with equanimity such an 
interchange of national courtesies as binds 
states together and promotes commercial 
relations, and abhors the economic upheaval 
that follows closely in the trail of war. It 
therefore views belligerency as something 
abnormal which is to be restrained — not 
encouraged. 

The other argument to sustain the legal 



134 Neutral Rights and Duties 

right which the belligerent unquestionably 
enjoys under the existing law of contraband 
may be based upon the presumption that 
contraband is an extension of the defensible 
doctrine of blockade which commends itself 
to human intelligence. In blockade, as has 
been seen, a belligerent by assuming a 
proprietorship of certain waters, which it is 
able to enforce, seizes and condemns all 
vessels which venture therein. 

Why, then, says the apologist, should not 
the same belligerent try to seize neutral 
vessels before they reach the zone which it is 
effectively patrolling? By so doing it accom- 
plishes the same results that follow an effec- 
tive blockade. 

The answer is simple enough. Partly 
because the apprehension of the neutral 
under such circumstances is uncertain, but 
more particularly because the seizure takes 
place in seas that are under no limited juris- 
diction, and in which the neutral has as good 
a right as the belligerent. 

Thus another plea for existing law breaks 



Regarding Contraband 135 

down, and with the effect of persuading many 
that if the doctrine of contraband is to 
remain imqualified, opportunities for inter- 
national misunderstanding and abuse will 
continue indefinitely. 

It would be better to curtail the powers of 
the belligerent as far as wide capture and 
condemnation are concerned. The aggrieved 
nation could then make such diplomatic 
representations as its interests might require : 
refer the matter to any international or other 
tribunal having jurisdiction; or take forcible 
action on the ground that the practices of 
the supposed neutral were unfriendly and 
constituted a casus belli. 



CHAPTER XVII 

THE UNSATISFACTORINESS OF THE DOCTRINE 
OF CONTRABAND 

T^HERE is a good deal of nonsense about 

^ contraband. This must have occurred 

to the sages whose treatises gravely rehearse 

the undoubted facts as to usage. If so, they 

have felt the restraint of the period in which 

they have written, and have abstained from 

critical comment lest confusion follow. Thus 

from Grotius to Oppenheim the student is 

furnished with possible, but not positive, 

lists of neutral goods and chattels that are 

viewed askance by belligerents. These are 

classified variously but most satisfactorily as: 

Articles that can only be made use of in 

time of war, which include arms, munitions, 

military accoutrements, etc., referred to by 

the London Convention as absolute contra- 
136 



An Unsatisfactory Doctrine 137 

band ; articles that can never be made use 
of in times of war, characterized under the 
London Convention as free goods — articles 
of luxury are supposed to be of this nature; 
articles that may or may not be used in war — 
these are referred to as having ancipitis usus 
by Grotius. They include provisions, money, 
ships, and articles of naval equipment which 
have a double use and which may or may not 
be contraband. 

International lawyers are agreed as to the 
character of these lists as they are in their 
broad statements regarding the doctrine of 
contraband. Further than this, however, 
they did not dare to go until the London 
Convention, when steps were taken partly 
based upon precedents, partly on compromise. 
Some will say the reason for this lay in the 
fact that the doctrine of contraband is an 
arbitrary one, resting upon usage, not upon 
principle; others, because from its very 
nature the law of contraband shifts with the 
necessities of the belligerents. Meantime 
the Supreme Court of the United States has 



138 Neutral Rights and Duties 

not hesitated to affirm (the Peterhoff) : "The 
classification of goods as contraband or not 
contraband has much perplexed text writers 
and jurists. A strictly accurate and satis- 
factory classification is perhaps imprac- 
ticable." 

To illustrate this, one publicist recom- 
mends that things which enter into the 
manufacture of arms and ammunition, of 
military supplies and of absolute contraband, 
be regarded as themselves absolute contra- 
band, to which the response is made — That 
as almost every commodity known to com- 
merce enters into the manufacture of various 
things having a military use, it may be as 
well to make everything contraband. 

There is enough virile sense in the sugges- 
tion thus made to encourage independent 
thinking. It is manifestly absurd to cut off 
from a belligerent weapons of war, and at 
the same time permit all the ingredients 
which enter into the manufacture of such 
weapons to be freely shipped. The only 
difference to the enemy would lie in the cost 



An Unsatisfactory Doctrine 139 

of manuiacture and the time taken for 
construction. The weapons would ultimately 
be provided. Yet departments of state in- 
terchange notes regarding the status of this 
and the other product, as if there were some 
kind of cleavage by which the Almighty had 
differentiated contraband from noncontra- 
band. 

To the untrammeled intelligence this must 
all appear like a very roundabout and un- 
reasonable way of dealing with a great 
problem. To such a mind the facts indicate 
that neither belligerent wishes trade of any 
sort carried on with the other. " his embraces 
the free list of articles positively not used in 
war as well as military supplies. The whole 
matter is relative. Neutral shipping of 
cannon to an enemy is one hundred per cent, 
abominable to the belligerent, but toilet 
articles may convey some sense of comfort, 
and therefore are objectionable if only one 
per cent. Why dicker and fuss over lists 
of crude and manufactured goods that may 
or may not be carried in neutral bottoms? 



140 Neutral Rights and Duties 

There is no possibility, as witness the 
experience of the schedules volunteered by 
the London Conference, that there will ever 
be such unanimity among the nations as to 
crystallize into two different groups the 
prohibited and the unprohibited. It were 
better, therefore, for a belligerent either to 
permit trade between neutrals and the enemy 
or to block the same entirely. Either course 
would be less confusing than the present 
method of procedure. 

For the purpose of studying the matter 
further let us imagine a belligerent as giving 
notice that all articles of commerce would be 
considered contraband. What would follow? 
If the belligerent was a powerful nation, able 
to impose its will upon a neutral trading 
people, it would undoubtedly have its way. 
If it were not, its requests, representations, 
and prayers would go unheeded. Satisfied 
that it was able to keep the objecting beUiger- 
ent off with one hand, and turn over its 
goods with the other, the neutral would 
continue to follow the course best suited to 



An Unsatisfactory Doctrine 141 

its interests. Why should it not? It has 
sovereignty. The quarrel (mayhap across 
seas) does not interest it. Is there any 
reason why it should indefinitely affect the 
resources of its own citizens, and refuse trade 
with a friendly Power because warned that 
this did not please a third party? 

The result of facing difficulties in this 
frank, if embarrassing, manner would stimu- 
late statesmen to do some original thinking. 
Thus far they have been content to abide by 
the rulings of doctrinaires, or to work out 
some such petty subterfuge as is the resource 
of the opportunist. If, under pressure, 
trained minds were content not only to 
eliminate that which is superficial in the 
law of contraband, but to frame proposals 
sufficiently akin to natural law to be de- 
fensible, it is not unlikely that their overtures 
by pushing the law of blockade to a reason- 
able limit would leave the combatant that 
which it appears to be entitled to, as far as 
neutrals are concerned, and relieve the lat- 
ter from a thousand embarrassments which 



142 Neutral Rights and Duties 

may readily be the cause of extending the 
war. 

It cannot be denied that such a suggestion 
has a visionary element when viewed from 
the standpoint of the past. This is because 
the world has been content to proceed along 
lines laid by academic thinkers (who have 
not infrequently adopted wrong premises) 
and by far from disinterested treaty makers. 

If, however, the astounding changes that 
have come about with the elimination of time 
and space by scientific and commercial 
activity should ever throw the remodeling 
of international law into the hands not only 
of professors and jurists, who are indis- 
pensable, but of men of affairs, who have 
promoted large enterprises by straightfor- 
wardness and simplicity, and of officers 
trained in a large way by army and navy ser- 
vice, the law of contraband, as it now exists, 
will be roughly handled. Why should it not 
be? Can any system more ridiculous than 
that which is now law be shaped up? 

Under the prevailing doctrine a belligerent 



An Unsatisfactory Doctrine 143 

nation of one million inhabitants, with an 
insignificant navy, is automatically in posi- 
tion after hostilities are joined, and with 
proper advertisement, to seize and confiscate 
all the articles of a certain nature that its 
warships find in the vessels of a nation whose 
population is from fifty to a hundred times 
greater, and to do this in the broad water- 
ways of the world over which it has no 
jurisdiction. 

This is not all : by proper announcement it 
may add to the lists of contraband about 
every product that it pleases and put itself 
in a position to do thrice the harm to neutrals 
that it can ever do to the enemy, all with the 
apparent seal of unquestioned authority. 
Such is a possible, if hypothetical, instance. 
Innumerable others will occur to anyone 
who cares to give the matter thought. For 
our present purpose one case is sufficient — 
let us bear it in mind as we more particularly 
review the law of contraband as it stands, 
and vShould be observed until such time as 
amendment can be made. 



CHAPTER XVIII 

GENERAL RULES — ^ABSOLUTE CONTRABAND 

TN the interest of neutral nations, which in 
'*' ordinary times must compose by far the 
majority of civilized states, these pages have 
set out some of the incongruities and un- 
satisfactory features of contraband, without 
more particularly discussing recent and 
present practice than to call attention to 
the three classes — "absolute contraband," 
"free goods,** and ^'ancipitis usus'' — into 
which it has been divided. 

It is now proposed to deal with the subject 
specifically by referring to a few general 
rules, giving examples of contraband assigned 
to each of the above classes, and noting 
certain extensions of the doctrine. General 
rules may be summed up as follows : 

I. Contraband is limited to goods or 
144 



General Rules — Contraband 145 

commodities shipped by a neutral for enemy 
use. 

2. The carrying of contraband is in defiance 
of belligerent requirements, and belligerents 
(it must be regretfully stated) are by inter- 
national consent placed for this purpose in 
control of all trade routes. A belligerent can 
therefore confiscate in belligerent or open 
seas (not in neutral waters) the captured 
cargo of a vessel bound to an enemy port, 
or which will touch at an enemy port, on 
its way to a neutral destination — provided 
the goods are such as become contraband 
when destined for the enemy. 

3. The fact that a cargo of contraband is 
intended for a neutral or bound to a neutral 
port will not help the owner, if it appears 
that the forbidden goods are to be trans- 
shipped to the enemy. This has to do with 
the doctrine of the continuous voyage. It 
appears to make no difference whether one or 
more neutral ports intervene before the goods 
are delivered to the enemy, or whether they 
leach the latter by land or sea carriage. 



146 Neutral Rights and Duties 

4. There are certain articles {ancipitis usus) 
which can be used for war or not, which it is 
yet clear would be of great advantage to the 
enemy, if shipped to places held by its armies 
or navies, to fortified places, or to the govern- 
ment and its subsidiaries. Such commodi- 
ties are known as conditional contraband, 
and are exposed to seizure and confiscation. 

5. A vessel cannot be captured which has 
delivered contraband and is homeward 
bound. 

6. All goods belonging to the owner of 
contraband and forming part of the same 
cargo may be confiscated, and the vessel 
itself may be contraband. 

7. Vessels bearing contraband must be 
taken to a prize court. 

8. There is some recognition given to 
belligerent rights to preempt neutral vessels 
and cargo not clearly contraband ; Phillimore 
writes more at length on the subject than 
later English authorities. 

These regulations are given, not as crystal- 
lized and authoritative, but as presenting 



General Rules — Contraband 147 

reasonable ground for recognition in the fact 
that they are offered by the Declaration of 
London, and have been accepted for some 
time by a respectable group of Powers. 
That much is unsettled as to their final form 
and interpretation will readily appear to 
anyone who reviews the matter historically. 

Meantime, if there is doubt in regard to 
general rules, there is absolute confusion in 
the classification of goods and commodities 
that may or may not fall under the law of 
contraband. Taking these up in order we 
find eminent publicists listing most of the 
following articles, because of their special 
adaptation to military use, as absolute 
contraband. The list is affirmed in toto by 
the Declaration of London: 

I. Arms, including arms for sporting pur- 
poses, and their parts; 2. Projectiles, charges, 
and cartridges of all kinds and their parts; 
3. Powder and explosives, specially prepared 
for use in war; 4. Gun mountings, limber 
boxes, limbers, military wagons, field forges, 
and their parts; 5. Military clothing and 



148 Neutral Rights and Duties 

equipment; 6. Military harnesses ; 7. Saddle, 
draught, and pack animals suitable for use in 
war; 8. Articles for camp equipment and 
their parts; 9. Armor plates; 10. War-ships, 
including boats and their distinctive com- 
ponent parts of such a nature that they can 
only be used on a vessel of war; 11. Im- 
plements and apparatus designed exclusively 
for the manufacture of munitions of war, and 
for the manufacture or repair of arms or of 
war material for use on land or sea. 

No notice is required in the case of the 
above articles, but to these is attached a 
first class of conditional contraband which 
becomes absolute only "after special declara- 
tion and notification, " viz.: 

I. Foodstuffs; 2. Forage and grain; 3. 
Clothing, fabrics for clothing, and boots and 
shoes for use in war ; 4. Gold and silver, etc. ; 
5. Vehicles of all kinds available for use in 
war and their parts; 6. Vessels and craft, 
docks and their parts; 7. Railway material 
and stock, material for telegraph and tele- 
phone; 8. Balloons and flying machines and 



General Rules — Contraband 149 

accessories; 9. Fuel and lubricants; 10. 
Powder and explosives (not specially pre- 
pared for war use); 11. Barbed wire and 
implements for cutting, etc.; 12. Horseshoes 
and shoeing material; 13. Harness and sad- 
dlery; 14. Field-glasses, telescopes, chronom- 
eters, and all kinds of nautical instruments. 

These lists have been given in full that 
they may be studied in connection with the 
notices given by the present warring Powers. 
On August 5, 1 9 14, the United States 
Ambassador in London received from the 
British Foreign Office a list declared by it 
to be absolute and conditional contraband, 
especially during the present war. Section 
I included the list referred to above as 
absolute contraband of the first class, which is 
practically that of the London Declaration 
with the exception that an additional group 
of articles was substituted for those marked 
II, the latter being designated as 12. 

The new group (11) included aeroplanes, 
airships, balloons, and aircraft of all kinds 
and their component parts, together with 



I50 Neutral Rights and Duties 

accessories and articles recognized as in- 
tended for use in connection with balloons 
and aircraft. Schedule II., the list referred 
to above as conditional contraband (becom- 
ing absolute on declaration), included thir- 
teen groups instead of the fourteen of the 
London Declaration, the eighth group, com- 
posed of balloons and flying machines, being 
eliminated and made, as has been noted, 
group II under Schedule I. 

On August II and September 9, 1914, 
the French and Russian governments re- 
spectively adopted the schedules for absolute 
contraband earlier proclaimed by the British 
government. It remains for us in another 
chapter to note the changes that have 
followed with the succeeding months. 



CHAPTER XIX 

CONTRABAND AS FURTHER DEFINED BY 
RECENT PROCLAMATIONS 

A TTENTION has been called to the fact 
^^^ that shortly after the outbreak of the 
war the Allies adopted Articles 22 and 24 
of the Declaration of London which desig- 
nates, with minor changes, eleven groups 
of absolute contraband and fourteen groups 
which belong to the first class of conditional 
contraband. 

Sept. 4, 1 9 14, Ambassador Gerard notified 
the United States Secretary of State that he 
found the list which the German Government 
intended to treat as contraband agreed with 
the same articles, and on Sept. 7th, Ambassa- 
dor Penfield followed with a similar announce- 
ment for the Austro-Hungarian Government 
from Vienna. The latter date marks the 
151 



152 Neutral Rights and Duties 

nearest approach which the belligerent Powers 
came to putting in practice the formal 
provisions of an instrument which was 
supposed to reflect the best thought of their 
statesmen, and which had been drafted to 
meet the exigencies of war. 

Hardly had the United States, under 
date of Oct. 22, 1914, withdrawn the sug- 
gestion to the European combatants "that 
the Declaration of London be adopted as 
a temporary code of naval warfare," than 
Great Britain, Oct. 29, 1914, supplementing 
a proclamation of Sept. 21st, of the same 
year, consolidated lists of contraband already 
published with additions thereto. This new 
list added to Schedule I. (absolute contra- 
band) : Sulphuric acid ; range finders and 
their component parts ; hematite iron ore and 
hematite pig iron; iron pyrites; nickel ore 
and nickel; ferrochrome and chrome ore; 
copper unwrought; lead, pig, sheet or pipe; 
aluminium; ferrosilica; barbed wire and im- 
plements for fixing and cutting the same 
(heretofore listed with conditional contraband 



Contraband Defined 153 

of the first class) ; motor vehicles of all kinds 
and their component parts; motor tires — 
rubber; mineral oils, and motor spirits, 
except lubricating oils. 

The list amended Schedule II. (condi- 
tional contraband to be regarded as absolute) 
by eliminating barbed wire and adding: 
Sulphur: glycerine; hides of all kinds, dry 
or wet; pig skins, raw or dressed; leather, 
undressed or dressed, suitable for saddlery, 
harness, or military boots. The rearrange- 
ment placed twenty-six groups under the 
head of absolute contraband, and fifteen 
under the head of conditional contraband 
of the first class, an addition of sixteen dis- 
tinctive classes of goods or materials. 

Considerable as was the readjustment thus 
formally decreed, it proved to be insufficient 
to meet the requirements of the United King- 
dom, for under date of Dec. 23, 1914, March 
10, 191 5, and March 11, 191 5, there were 
added to Schedule I. ingredients of explosives : 
Resinous products, camphor and turpentine 
(oil and spirit); submarine sound signalling 



154 Neutral Rights and Duties 

apparatus; various metals and ores (added 
to groups already numbered) ; raw wool, wool 
tops and noils and woolen and worsted yarns ; 
tin, chloride of tin, tin ore; castor oil; paraf- 
fine wax; copper iodide; hides of various 
sorts; ammonia and its salts, etc. When 
it is noted that under the single head of ex- 
plosives twenty or thirty acid, chemicals, 
and products of coal tar are specifically 
mentioned, the list of forbidden merchandise 
becomes bewildering, the situation being in 
no way improved by the fact that Class I. 
of Conditional Contraband (to be regarded 
as '* Absolute") was further revised. 

It is hoped that this brief review will 
give the reader some idea of the extraor- 
dinary restraints placed upon neutral trade. 
Incomplete as it is (since by subsequent pro- 
clamation of the French and Russian govern- 
ments the British list is made their own), 
it will serve to indicate the attitude of the 
Allies up to the spring of the current year. 
(The action of the Central Powers is less 
significant. Not being in a position to 



Contraband Defined 155 

interfere with shipping in the great water- 
ways of the world, they have naturally been 
more modest in their declaration of prohibited 
merchandise, but through Germany under 
date of April 15, 191 5, have taken a step 
in the other direction by indicating fifteen 
groups of articles which cannot be declared 
contraband of war.) 

What is to be done in the premises? With 
decided objections to becoming embroiled in 
the cataclysm over seas; with a feeling that 
the group of belligerents, which controls the 
oceans by their naval forces, are within their 
rights, if precedents are to be considered; and 
with a large percentage of its people sym- 
pathetically disposed to the Allies' cause — 
the United States is yet as definitely affected 
as if it were itself at war : (i) By restrictions of 
friendly Powers; (2) by the interpretations 
placed upon those restrictions. 

Can anything be suggested to right 
matters? The natural answer is — "No! 
Not if Americans are content to tramp in 
the beaten path of custom's treadmill." 



156 Neutral Rights and Duties 

If, on the other hand, our people are keen to 
recognize the necessity of fairly treating 
combatants who are, for the most part, 
within what has heretofore been recognized 
as belligerent rights, but eager to do away 
with doctrines that are antiquated and 
prejudicial to the best interests of the race, 
they may readily say to their Department of 
State: 

1 . Use your good offices during the present 
war to secure from belligerents such modi- 
fications of their contraband lists as will 
relieve the neutral shipper from the embar- 
rassment of acting in constant uncertainty 
regarding the sort of shipments permitted 
him. 

2. Arrange so that opportunity shall offer 
at the end of the war for the United States 
to push for such a curtailment of the whole 
doctrine of contraband as will leave neutral 
shipping unaffected by belligerency up to the 
moment when it enters a war zone. Better, 
as has already been suggested, that a loaded 
United States merchantman should enter 



Contraband Denned 157 

forbidden waters with the anticipation of 
having her entire cargo, whatever its nature, 
sequestrated, than that every exporting house 
and all skippers should be obliged to retain 
a staff of expert chemists and physicists to 
tell them whether or not their vessels may 
poke their prows out of home harbors with- 
out being haled before distant prize courts. 

As matters stand, a United States ship 
loaded with tooth powder leaves port with the 
distinct chance of being overhauled by an 
allied cruiser; charged with carrying contra- 
band, on the claim that the tooth powder 
is nothing more nor less than some basic 
proposition with a name familiar to chemists 
only, or because the captain of the war 
vessel is in doubt; and carried out of his 
course to await the decision of a court whose 
docket is too crowded to give him any hope 
of having his case adjudicated. 

The instance in question presumes the 
captor to be British or French. If it hap- 
pened to be German, under the Imperial Gov- 
ernment's interpretation of existing treaties, 



158 Neutral Rights and Duties 

is there not reasonable ground for believing 
that both ship and cargo would be im- 
mediately consigned to the bottom of the 
sea? 



CHAPTER XX 

CARRIAGE OF CONTRABAND — CONTINUOUS 
VOYAGE 

\\T^ have seen how the general principles 
^ ^ of the doctrine of contraband have 
received enough endorsement from sovereign 
states to make them respectable. We have 
also seen by reference to the great war drama 
now unfolding how the last and best attempt 
of the nations to designate by the London 
Declaration what shall and what shall not 
be contraband has failed, thus denying to 
neutrals that which law is supposed to furnish 
for them, viz., such an accurate understand- 
ing as to their rights and duties as may pre- 
vent erroneous action. 

With such a collapse to advertise the short- 
comings of an artificial doctrine it may well 
be hoped that the time is not far distant 
159 



i6o Neutral Rights and Duties 

when, instead of meeting in grave conclaves 
to classify contraband, statesmen will put 
all neutral goods on the free list that are 
outside of guarded waters. Until that time 
comes neutral shippers will have to think of 
international law in this aspect as forbidding 
and against nature. In the meantime those 
of them that are informed are not likely to 
forget that while the law which permits 
belligerents to interfere with neutral ships 
outside of the sphere they dominate is 
"international," the prohibition which con- 
traband carrying neutrals break is ''munici- 
pal ; a fact which will continue to make such 
restrictions the more odious, as well as the 
less defensible. 

The more odious because they affect to 
control a citizen who owes no allegiance to 
any other country than his own in fields 
where the forbidding Power has absolutely 
no jurisdiction. The less defensible because 
these restraints lack the characteristics which 
would attach to them (as far as the offender 
is concerned) if the country of the latter had 



Carriage of Contraband i6i 

joined in their enactment. This way lies 
progress, for when law or custom that is ar- 
bitrary and unnatural becomes hateful to the 
few who realize that they and their fellows 
are bound hand and foot thereby, means are 
generally found to open the eyes of the blind 
and substitute something that is sane and 
reasonable. 

From an inquiry into the character of 
articles which have been or are now desig- 
nated contraband, we naturally pass to a 
brief discussion of the carriage of contraband, 
which has had some reference in preceding 
summaries. Here, as when considering what 
is contraband, we are at once plunged into so 
much confusion that it is a relief to quote 
the London Declaration, rather than to at- 
tempt to analyze policies and opinions which 
preceded it. 

By this instrument goods which, if bona 
fide intended for another neutral, cannot be 
meddled with by a belligerent, are open to 
confiscation : 

I . If they fall within the list charactei ized 



i62 Neutral Rights and Duties 

as absolute contraband, when it is evident 
that the carrying vessel: {a) Is bound for an 
enemy port; {h) is sailing for an enemy port 
although her papers indicate a neutral desti- 
nation ; (c) is sailing for a neutral harbor with 
papers suggesting neutral consignees, but is 
arranging to stop en route at an intermediate 
port or to meet armed enemy forces: 

2. If they fall within the list characterized 
as conditional contraband when the carrying 
vessel : (a) Is destined to an enemy port ; {h) 
is so clearly out of her course to the neutral 
port indicated in her papers as to require ade- 
quate explanations which she is unable to 
give. 

Unfortunately it is too early to comment 
satisfactorily upon the manner in which 
belligerent states are interpreting these rules 
and the attention which they receive. With 
the general law of contraband what it is, 
however, it does not take a very astute ob- 
server to appreciate that in the hands of 

tions at war they may become very oppres- 
sive and are so framed as to serve belligerent 



Carriage of Contraband 163 

interests. Thus the combatant, who fails to 
intimidate neutrals from attempting to con- 
duct legitimate trade with the enemy by post- 
ing endless lists of contraband, can overhaul 
cargoes after they are once afloat and avoid 
the risk of letting prohibited articles come 
into enemy hands. 

It is in connection with the carriage of 
contraband that we come in touch with the 
doctrine of the ''continuous voyage" as a 
so-called extension of the general law which 
we are considering. This is nothing more 
than the application of existing contraband 
rules to cases that, because of subterfuge or 
trickery, are claimed to be immune. It comes 
into play when a ship loaded with contraband 
puts into a neutral port designated in her 
papers with the design of either transshipping 
the cargo to an enemy destination (''continu- 
ous transports") or of herself conveying it 
thither. 

At the time of the Civil War the United 
States courts, handling cases which were 
frequent and annoying (see notably the 



i64 Neutral Rights and Duties 

Bermuda and the Peterhof), gave the first 
clear expression to a practice that was already, 
familiar, though contested by both British 
and Continental authorities. So convincing 
were their reasonings that, as has been the 
case with scientists and physicists who have 
first stated in terms that which others vaguely 
appreciated, they received credit for ema- 
nating something new, and some ingenious 
theories have recently been propounded to 
endorse questionable practices on the pre- 
sumption that the United States Supreme 
Court had furnished precedents which justify 
an expansion of belligerent activities. 

This is far from the fact. All that the 
United States Supreme Court did in the 
period referred to was to deny most emphat- 
ically that any hocus-pocus like landing a 
contraband cargo in Matamoras or Nassau 
for the sake of making it immune, before de- 
livering it in Florida, would be of any effect 
in making the commodities in question un- 
objectionable. One does not have to be a 
learned justice to see the sanity of such a 



Carriage of Contraband 165 

position, but one does require rare scholarly 
abilities to make a statement which will cut 
through the technical objections of legal 
practitioners. That ability our courts sup- 
plied to such good effect that not only emi- 
nent publicists upon the Continent accepted 
their decisions as authoritative, but British 
ministers and jurists shifted their attitude 
and adopted a course in line with what is 
now referred to generally as an American 
doctrine. 



CHAPTER XXI 



UNNEUTRAL SERVICE 



\ TO sooner does war break out than the 
*■ ^ most prudent of neutrals, if it happens 
to be a commercial nation of importance, is 
embarrassed with successive notes from the 
chancellories of the belligerent peoples, pro- 
testing against unneutral service. As these 
charges, more or less veiled in diplomatic 
language, frequently balance each other, they 
need not necessarily be taken too seriously. 

Thus where each nation is purchasing equal 
shipments of rapid-firing guns it is obviously 
absurd for either to protest against a practice 
which directly serves its own purposes. 

Meantime the exigencies and fortunes of 
war are sure to develop situations that not 
unreasonably arouse belligerent suspicion 
that the enemy is being unfairly favored. 

i66 



Unneutral Service 167 

It may be in matters apparently trivial 
from the neutral standpoint. 

It may be in matters so serious as to make 
the neutral appear to be in a sort of veiled 
alHance with the foe. 

If there is ground for such accusations, 
nothing remains for the neutral but to retire 
from an untenable position. 

If the charges are without warrant, and 
the neutral is clearly within its rights, it may 
not only be put in a most humiliating position 
by submitting to belligerent dictation, but 
provide precedents that will retard the pro- 
gress of the nations. 

With portentous developments depend- 
ing upon correct action, or the contrary, 
it is therefore of inestimable importance 
that neutral governments should familiarize 
themselves with accepted principles, so that 
they may avoid breaches of defined rules 
unless there is competent reason for so 
doing. 

In making such preparation two facts will 
become evident : 



i68 Neutral Rights and Duties 

1. That there has been a distinct effort 
during the last generation to characterize 
the sort of impartiality which is expected 
of neutrals; and 

2. That praiseworthy as the attempt has 
been to mark the limitations of neutral 
and belligerent intercourse, it has not been 
altogether successful. 

Twenty-eight years ago Francis Wharton 
in his "Digest of International Law of the 
United States" (taken from administrative 
documents, the decisions of Federal Courts 
and the opinions of attorney-generals), sum- 
marized restrictions on a neutral in the form 
of the following duties, viz. : 

1. The duty to restrain enlistments by 
belligerents. (This cannot be presumed with 
recent experiences in mind to include the 
prohibition of reservists sailing as individuals 
from neutral ports to rejoin the colors.) 

2. The duty to refrain from ''the issuing 
of armed expeditions. " 

3. The duty to restrain the fitting out 
and sailing of armed cruisers of belligerents 



Unneutral Service 169 

(this emphatically includes the providing of 
ships of war by national act). 

4. The duty to prevent the passage of 
belligerent troops over its soil (the latest 
authorities do not permit this, even if pro- 
vided for by treaty prior to the war). 

5. The duty to prevent the use of its 
territory as a base of belligerent operations. 

6. The duty to prevent belligerent naval 
operations in territorial waters (belligerent 
war vessels and their prizes may pass through 
neutral waters under the provisions of the 
recent London Convention). 

7. The duty to prevent the sale of prizes 
in its ports, (by Articles 21 and 22 of the 
London Convention prizes may be brought 
into neutral ports if unseaworthy or because 
of special conditions.) 

8. The duty to redress damages done to 
belligerents by its connivance or negligence. 

In a general way the duties thus briefly 
affirmed with the comments thereupon are 
undoubtedly as well fitted to serve United 
States Cabinet officials desiring information 



170 Neutral Rights and Duties 

in regard to national responsibilities in time 
of war, as the ordinary deportment book is 
suited to instruct young persons in polite 
manners. 

So far so good, especially since the rules 
thus recapitulated still have force and have 
been recognized by the United States at least 
as entirely applicable to its conduct during 
the present war. 

Meantime Article 3 of Convention V and 
Article 5 of Convention XIII of the Hague 
Conference of 1907, because they have to 
do with matters undreamed of at the time 
of Wharton's publication, suffice to show 
how impracticable it must ever be to com- 
prehend in any text-book or digest all the 
particular acts or classes of acts that a neu- 
tral must refrain from doing if it wishes to 
preserve cordial relations with belligerents. 

These Articles, selected from the fifty-eight 
framed by the aforesaid Convention, respect- 
ing the rights and duties of neutral Powers 
on land and in maritime war, forbid the 
erection by a belligerent "on the territory 



Unneutral Service 171 

of a neutral power of a wireless telegraph 
station or other apparatus for the purpose of 
communicating with belligerent forces on land 
or sea, " and hold the neutral responsible for 
permitting the occurrence. 

. Such an instance illustrates as admirably 
as would a dozen, the fact that a neutral 
must be guided by principles rather than by 
the letter of the law, and that common sense 
and a desire to do equity will be worth more 
than any digest however authoritative. Bear- 
ing this in mind it is well to note other 
restraints upon neutral activity than those 
marked by Wharton, but which have re- 
ceived certain if not final recognition. Among 
these are: 

1. The duty to prevent a belligerent from 
setting up a prize court on neutral soil. 

2. The duty to prevent a belligerent from 
using neutral territory as a base for manufac- 
turing arms or supplies (reference is made else- 
where to the proper resentment a neutral may 
show when belligerent plotting interferes with 
the industrial activities of private citizens). 



172 Neutral Rights and Duties 

3. The duty to prevent belligerent war- 
ships from making neutral ports a base for 
war activities. The rule is that not more 
than three at a time should be admitted 
to a given harbor and these can only remain 
for repairs, or to coal or provision — a sharp 
limit being placed on the time of their contin- 
uance and care being taken that they do not 
receive arms or military supplies. 

4. The duty to intern belligerent ships 
that fail to obey orders to leave port. 

5. The duty to refuse a belligerent the 
privilege of marching prisoners through 
neutral territory. 

6. The duty to prevent its war or public 
vessels to directly aid a belligerent by carry- 
ing armed forces, stores, dispatches, or war 
material. 

7. The duty to prevent its official agen- 
cies of whatever character from giving a 
belligerent news which may be used to the 
disadvantage of its opponent.. 

8. The duty to exact from belligerents 
such compensation as the occasion may 



Unneutral Service 173 

demand for unpreventable acts which both 
violate its neutraHty and injure the other 
belHgerent. 

9. The duty to secure the release of 
prizes taken or prisoners captured on its 
territory. 

10. And generally, in accordance with 
Articles 8 and 25 of Convention XIII of the 
second Hague Conference, the duty of em- 
ploying the means at its disposal to prevent 
acts favoring or damaging a belligerent. 

Such are certain of the obligations which 
are automatically imposed by war upon a 
state which announces its intention to remain 
neutral. 

That they are sufficiently burdensome is 
apparent. Notwithstanding this there are 
those that would add to their number by 
making a neutral nation responsible for the 
acts of its subjects. This is preposterous. 
Even a small state cannot undertake to keep 
the surveillance of its people which any rule 
framed upon a like conception of its responsi- 
bility would require. 



174 Neutral Rights and Duties 

Belligerents must, therefore, rest con- 
tent with the fact that they have long been 
permitted to enforce their own police meas- 
ures against such neutral individuals as 
transgress their reasonable laws. For the 
temper of the world is changing with the 
elimination of time and space, and there is 
little humor for further concessions. 

It was well enough for wrangling states, 
that were so disposed, to arm and pitch into 
each other during those golden times when 
three-quarters of the world were oblivious of 
what was happening in the other quarter. 
Belligerents could then dictate to peaceful 
neighbors without fear of armed protest. 
That time is long past, however, and war, 
always as much of a nuisance to those on its 
outskirts as it has been a tragedy to the 
peoples directly concerned, is bound to weigh 
with increasing heaviness upon neutrals. It 
is better that these latter, instead of giving 
further bonds to the quarrelsome, should 
either lay aside their neutrality when right- 
eousness and justice are shocked by the 



Unneutral Service 175 

unconscionable aggressions of a militant state, 
or if there is equal guilt, refuse to give the 
combatants the consideration now vouch- 
safed. 



CHAPTER XXII 

CARDINAL RIGHTS 

DEFERENCE has been made to the 
* ^ criminations that belligerents file 
against neutral states with the advent of war. 
What about counter-charges from neutrals! 
Unfortunately for a reason already given — 
viz. , — the habit of considering belligerency not 
only most respectable, but of such dominat- 
ing importance as to be controlling — little has 
been written or said about the sort of comity 
and fair treatment that neutrals may properly 
demand from belligerents. 

Surely the time has come to turn things 
about and to insist that the engagements of 
states to each other, whether express or 
implied, be carefully regarded whether war 
distracts the attention of a party to the 

contract, or not. 

176 



Cardinal Rights 177 

This means that the neutral must be as 
insistent as vigorous in defense of its rights, 
and as alert as is the belligerent; instead of 
standing by, paralyzed by the mere sugges- 
tion of war — as if such a status like some 
necromancer's rod were capable of turning 
everything topsy-turvy. 

Such action is nothing more than a demand 
for justice. Unassailable because of the right- 
eousness of its attitude, it is probable that a 
powerful neutral state can do more to bring 
about a proper adjustment of human affairs 
by firmness on a single occasion, than by 
repeatedly yielding its rights. The one 
course makes toward peace — the other and 
weaker way gives aid and comfort to the 
war-lords and encourages them to stir up 
further broils and aggressions. 

That such insistence upon the kind of 
treatment which is demanded by self-respect 
need lead to hostilities, does not follow. If 
nations are like individuals, and certainly 
there are many points in common, it is less 
dangerous to require ordinary consideration 



178 Neutral Rights and Duties 

from others than to submit to successive 
indignities until the aggressor is led to do 
something which will cause the most timid to 
turn. 

Meantime a nation that values its own 
rights will avoid trouble by a natural regard 
for the rights of others. It will also be a wise 
enough and keen enough observer to avoid 
asking that which is impracticable, as will 
be the case when a country in which neutral 
property may be located is held by an in- 
vader, or the approach of a hostile army 
has paralyzed the operations of the civil 
government. 

What are these rights which every neutral 
may properly assert, but which they have 
guarded in such a slovenly fashion heretofore : 

1. The right to the integrity of its own 
territory, and to prevent its misuse by for- 
eign powers for any such operations or pur- 
poses, military or otherwise, as may embarrass 
a nation with which the neutral state is at 
peace; 

2. The right to the integrity of its bays 



Cardinal Rights 179 

and harbors together with the waters, which 
it dominates, and which it is beHeved will 
shortly be conceded to cover a space along 
its coast far wider than the marine league 
honored in the United States since the days 
of Washington. 

3. The right to have its merchantmen 
and public ships pass unintercepted over the 
high seas, provided they commit no such 
breach of enemy requirements in the matter 
of blockade and contraband as the neutral 
may have conceded that belligerents are en- 
titled to impose ; this unequivocally includes 
the right to continue its trade with other 
neutrals ; 

4. The right to forbid belligerent inter- 
ference with neutral goods, which are not 
contraband, on enemy ships, or of enemy 
goods on neutral ships; 

5. The right to require from the bellig- 
erent courteous treatment of neutral officials 
and citizens, and such protection of neutral 
property as the non-combatant may, all 
other things being equal, expect in times of 



i8o Neutral Rights and Duties 

peace. It is of course recognized that this is 
subject to exigencies of war that may make 
it practically impossible for the belligerent 
to afford such police and other protection as it 
would gladly supply under different condi- 
tions; also that the rule is subject to the 
understanding that certain neutral property 
belonging to neutral citizens resident in 
enemy territory, acquires enemy character, 
notwithstanding the fact that it is still to a 
degree under the protection of a neutral 
government; 

6. The proper recognition of treaties, 
conventions, and agreements between the 
two nations; 

''7. The right to maintain intercourse with 
a belligerent government or with belligerent 
governments without let or interference, 
provided the neutral perform no unneutral 
act; 

8. The right to insist that belligerents 
shall avoid doing anything in neutral territory 
designed to cause embarrassment if not actual 
injury to a friendly people. This matter 



Cardinal Rights i8i 

will be treated separately because of its 
importance, and because the experiences 
of the United States since the fall of 1914 
appear to justify a fuller treatment than it 
has heretofore received; 

9. The right to protect its citizens in their 
intercourse with belligerents, provided the 
former do not contravene such belligerent 
requirements as are sanctioned by neutral 
acquiescence. 

That there are other rights than those thus 
classified will readily occur to every reader, 
although they have as yet had scant recogni- 
tion by international lawyers. Prominent 
among these, and of particular interest to the 
United States, should be those which arise in 
connection with eleemosynary enterprises in 
which citizens of neutral countries have 
engaged for the benefit of belligerent subjects, 
and under such ofiicial approval as has 
warranted the expenditure of enormous sums 
of money and the sacrificing service of valu- 
able lives. 

It is one thing for a group of citizens, 



1 82 Neutral Rights and Duties 

whether incorporated or otherwise, belonging 
to a given country, to locate a business pro- 
position in a foreign land and under the 
protection of a foreign flag. It should be 
quite another thing for the same group to 
maintain institutions which are educational 
in character among the people of a friendly 
state, provided the project meets with the 
endorsement, if not the encouragement, 
of the ruling Power. In the former case a tax 
is rightly exacted, and the alien association 
must expect to share with natives the dis- 
comforts to which they are exposed because it 
has shared their advantages. In the other, 
the enterprise is unselfish; is maintained for 
the benefit of the nation within whose borders 
its activities occur, and frequently is bul- 
warked through official action with particular 
privileges. Nothing less than distinctive 
motives differentiate the two lines of effort, 
and one does not have to be a subtle thinker 
to discover reasons why the experiment 
which is humanitarian and helpful, should 
take on a more favorable aspect when sub- 



Cardinal Rights 183 

mitted to the war test (not accorded it to 
the present time) than the business venture 
deserves. However this may be, there is 
certainly ground for governments like the 
United States and other neutral Powers to 
make strong representations when the flame 
of war threatens to scorch and jeopardize 
institutions located abroad, which their sub- 
jects have financed, and which are designed 
to promote international good- will. 

Such rights as these, however sentimental 
they may appear to the cynic, demand 
attention both from the standpoint of the 
interested nation and again from that of the 
society of civilized states whose ultimate 
welfare is dependent upon a growing comity 
and the reign of law. The reason is apparent, 
for if they, as well as the classified rights 
above referred to, be treated with indifference 
by the ministries mostly concerned, it will 
naturally eventuate that the extraordinary 
developments which are bringing the nations 
into a closer intercourse will produce disorder 
and chaos rather than amity and progress. 



1 84 Neutral Rights and Duties 

The suggestion comes with a glimpse into 
the future! Meantime the field thus cur- 
sorily touched should prove a fascinating one 
to the international lawyer and publicist, for 
many abuses that are interfering with inter- 
state confidence await correction. 



CHAPTER XXIII 

EXPRESSION OF OPINION 

f TNDER date of August 19, 1914, the 
^ President of the United States through 
the medium of the Senate appealed to the 
citizens of the Republic ''to assist in main- 
taining a state of neutrality during the 
present European War." 

Drafted with the skill that is noticeable 
in every message from Mr. Wilson's pen, and 
reflecting the high and honorable purposes 
of the Executive, the document properly 
caused remark at the time and may still 
be advantageously used to introduce a dis- 
cussion of the limitation of speech in neutral 
countries. 

Is it incumbent upon the people of a country 
that has proclaimed its neutrality to refrain 

from that sort oj comment upon belligerent 
185 



1 86 Neutral Rights and Duties 

policies or action which proclaims partisan- 
ship? It is inconceivable that any other 
answer than one that means No! can be 
framed, unless such expression be authori- 
tatively and lawfully enjoined by the govern- 
ment. Nor does it follow that any exception 
can be made because the Powers at war or 
either of them are irritated thereby. The 
latter are free, if it suit their purpose, to take 
notice of what is happening in a sphere 
which is absolutely outside of their control, 
and may even go so far as to threaten or force 
hostilities. The neutral state owes them no 
such duty as may entail a gag law, and there 
is no privity between them and the citizens 
of another sovereignty. If they take action, 
therefore, it must be on some plea analogous 
to necessity, as viewed from their standpoint. 
It cannot be a matter of right. 

Having disposed of the first question in a 
manner by no means uncertain, the inquirer 
finds himself confronted by a second, which to 
a fair-minded person is no less impressive. 

Is it desirable for the people of a country 



Expression of Opinion 187 

which has proclaimed its neutrality to refrain 
from an unfettered discussion of all issues 
which are being tried out between the belligerents 
as well as the motives, standards ^ and policies of 
the latter ? Yes ! If there is bias, blind pre- 
judice, and unworthy motive behind the 
spoken speech, or the sort of partisanship 
that may be readily challenged because it 
prefers some other cause to that of country. 
No! and eternally No! if the land of one's 
nativity is directly concerned and its future 
may be affected thereby. Such conditions 
should and do present moral elements which 
may even be conceived of as justifying a good 
citizen in challenging the mistaken authority 
of his country, if the latter attempts to 
bridle the expression of opinion. They cer- 
tainly therefore permit the utmost frankness 
of speech in cases where there is no restric- 
tion of municipal law, and one finds it difficult 
to think of any enlightened people, whether 
under the sway of a sceptre or self -guided, 
which might not otherwise find its dearest 
interests imperiled. 



1 88 Neutral Rights and Duties 

This is particularly true of a democracy! 

From the time when Montesquieu in dis- 
tinguishing his three forms of government 
differentiated the republican from the mon- 
archial and despotic, by pointing out that the 
whole body of the people therein took part in 
the government and each individual assumed 
the responsibility thereof — the thinking 
world has taken it for granted that this sort 
of body politic must inform itself and these 
citizen units ought to inform themselves 
regarding both exterior and interior affairs 
so that the interests of the people may be 
guarded. 

With these facts in mind one finds it diffi- 
cult to understand those phrases in the 
dignified appeal of President Wilson which 
suggest withholding of discussion and judg- 
ment, unless they may be explained: 

I. By the failure of a layman, whose 
patriotism and wisdom are beyond question, 
to appreciate the difference that exists be- 
tween the official action of a state and the 
informal and private utterances of its people. 



Expression of Opinion 189 

2. By the conviction that his warning 
must be so framed as to prevent actual 
collision between the millions of European- 
bom citizens of the United States whose 
affiliations separate them into various camps. 

That the first explanation would not be 
unnatural will occur to those who are familiar 
with the confused manner in which interna- 
tional lawyers of repute have handled the 
question of national partisanship, and who 
recall that the Chief Magistrate was called 
to meet a great crisis with brief time for 
meditation. 

As to the second — it must be noted that 
one-third of the appeal calls attention to the 
diverse character of American citizenship and 
bears witness to the fact that this aspect of 
our national status had made its impression 
on the President's mind. 

Certain of these sentences are as follows: 
** I venture to speak a solemn word of warning 
to you against that deepest, most subtle, most 
essential breach of neutrality which may 
spring out of partisanship, out of passion- 



I90 Neutral Rights and Duties 

ately taking sides. " We must be '*a nation 
that neither sits in judgment upon others," 
etc. 

It is not improbable that they were at 
first and are still misinterpreted, and that 
the President meant nothing more than to 
push a little further the thought expressed 
when he says — "we must be impartial in 
thought as well as in action" — which is 
certainly rational and beyond criticism, in 
that it counsels judicial fairness in the use 
of the thinking processes. 

If so, there exists no ground for objection. 

If, to the contrary, there was an intention 
to convey the idea that citizens individually 
or in conference must not under any circum- 
stances stir public opinion to such a degree 
as will make war possible and probable — there 
is certainly ground for challenging the counsel 
thus given, because of the serious consequences 
that might follow silent acquiescence in the 
misdeeds of a foreign Power. 

No one knows, and few dare to hazard an 
opinion as to the close of the war which 



Expression of Opinion 191 

furnished the occasion of this particular 
message. Meanwhile every intelligent per- 
son appreciates the fact that whenever 
actual hostilities cease, or whatever cause is 
dominant at the end — every State of conse- 
quence is apt to have its political or com- 
mercial policies distinctly shifted in the 
rearrangement that will follow. How can 
the appreciation of such pregnant conse- 
quences exert other influence than force 
upon the loyal citizen of every neutral coun- 
try the necessity of watching the course 
of events as it unrolls itself, and interchang- 
ing opinions with others thereupon. 

It may be that the outlook is portentous, 
and that now, not to-morrow, is the time 
for action. In that case, belligerency, not 
neutrality, will be in order. 

It is because of this necessary attitude of a 
brave and vigilant people that any advice 
which looks toward the preservation of 
neutrality must be carefully scrutinized, 
bearing in mind that the safety and prosperity 
of their native land is the object, not neutral- 



192 Neutral Rights and Duties 

ity because of any virtue in itself. Neutrality 
is a means to an end — an end which may mean 
peace and may mean warfare, but does not 
necessarily mean either in the largest sense 
of the word. When it becomes worthless as a 
means, it cannot too quickly be thrown aside. 

In making use of the President's appeal for 
the purpose of considering in a general way 
the right of the citizen of any neutral country 
to fully express opinion regarding belligerent 
activities, whether or not the spoken or writ- 
ten word indicates something of bias — we are 
led to deal directly with the present attitude 
of the European nations toward the people of 
the United States. 

That this ranges from criticism where 
ministerial action is frankly condemned, to 
direct hostility engendered because of a con- 
viction as to the trend of national sym- 
pathies, is obvious and natural. The pity is 
that in either case there should be a dis- 
position to regard the American people as 
unneutral, notwithstanding their approval of 
an official policy which is beyond suspicion. 



Expression of Opinion 193 

In the first instance it must be remembered 
that few cabinets exist in these days without 
having to endure the scorching faultfindings 
of the people they represent. It is therefore 
perfectly natural that groups of individuals 
who suffer directly from the policies inaugu- 
rated by a Power to which they owe no fealty, 
will give vent to cynicism, if not to justifiable 
anger. All this is natural and without 
significance. 

As to the trend of national sympathy in a 
neutral country that is unexpressed officially 
— it can no more be prevented than the suc- 
cession of the days! Thus if a belligerent is 
fighting for that which a neutral people 
believe to endanger their own interests, 
the latter are bound to comment. This was 
to be expected and is expected. Meantime 
the belligerent can congratulate itself if from 
any motive it is receiving the same courtesies 
that is offered its enemy. 

What is thus said in general has a particular 
illustration in the attitude of Americans 
toward the contending nations of Europe. 
13 



194 Neutral Rights and Duties 

Earnestly devoted to the free institutions, 
which are a passion with them as they were 
with the Fathers of the RepubHc, they can 
have no fondness for autocracy itself, and 
can only dread its achievements. To suggest 
otherwise would be a hypocrisy which would 
deceive no one, and could add nothing to a 
sovereignty's fair attempt to perform its 
duties impartially. 

Meantime a generous enthusiasm for their 
own ideals does not preclude their enacting 
the r61e of a neutral Power and even leaning 
backward in their attempt to rigorously 
observe the requirements of the part they 
choose to play. 

Let us remember that neutrality is one 
thing, but that national sympathy is another, 
and that no good can come from confusing 
the two. 



CHAPTER XXIV 

BELLIGERENT AGENTS IN NEUTRAL STATES 

T^HE extraordinary activity of belligerent 
^ agents in the United States during these 
days of stress and strain introduces a new 
factor into the field of international law. 
One of the results of a slovenly immigration 
policy, it must none the less be regarded 
as a natural sequence of that twentieth- cent- 
ury restlessness which is driving people over 
their own boundary lines and into other do- 
mains. For the present North America is 
reaping the unhappy results of her acquisi- 
tiveness. To-morrow it may be the Argentine 
or Chili, or yet again some new Asiatic state 
as yet unshaped. The inpouring of a host 
of immigrants and the joining of hostilities by 
the countries from which such immigrants 

come, are the only requirements. This 
195 



196 Neutral Rights and Duties 

makes it particularly necessary to think and 
act wisely with the first stirring of the factors 
which are startling the United States. 

Given a group of foreigners owing alle- 
giance to a nation that is at war, but them- 
selves domiciled in a neutral country or 
living therein as official representatives of 
their government, and which concocts 
schemes for the destruction of neutral pos- 
sessions, whether the same be manufacturing 
plants, material in the course of construction, 
or finished product — does the government, 
which is itself, or whose people are impover- 
ished thereby, owe any duty to the profiting 
belligerent or its subjects, whether the same 
be acting under its orders or upon their own 
initiative? 

It is unthinkable that any obligation 
should exist in the matter of private per- 
sons, inasmuch as these are as responsible 
to municipal regulations as are citizens. 
As for consuls, ambassadors, and the like, 
while their precious persons may require cer- 
tain consideration, they are supposed to stand 



Hostile Agents in Neutral States 197 

for the Power they represent, and in offend- 
ing, offer a direct challenge from those whose 
servants they are. If any duty exists in this 
case, it would seem to be a colorless one of 
using polite phrases and manners while 
demanding satisfaction; or declaring war in 
terms sufficiently correct. 

With duties thus disposed of the matter 
of rights may be considered without the 
embarrassment which comes when there is 
the uncertainty of a possible obligation. 
What rights has a neutral government in the 
premises ? 

I. The right to insist that the belligerent 
with which it is at peace, should not only 
abstain from interference with a friendly 
Power's internal concerns, but should — 

(a) rigorously handle diplomatic repre- 
sentatives who volunteer the sort of destruc- 
tive service which may at any moment offer 
a casus belli; 

(b) use its good offices in discouraging its 
subjects resident in neutral territory from the 
performance of such reprehensible practices. 



198 Neutral Rights and Duties 

2. The right to handle alien malefactors 
already amenable to her municipal law, with 
special severity, as open to a charge which 
criminals, who are citizens of the neutral 
state, are not suspected of, viz. : levying war 
upon the aggrieved sovereignty, and there- 
fore guilty of a felony which is akin to piracy. 

In this connection the report that the 
Attorney- General of the United States, in- 
stead of acting in the face of repeated out- 
rages of belligerent origin, is content to search 
for proper legal authorization along the line 
of the Sherman Act which will justify him 
in dealing effectively with an extraordinary 
situation, should have been received cum 
grano salts, and has been already discredited. 

Meantime it will not be sufficient for this 
nation or any nation to attempt to deal with 
this product of loose immigration laws by the 
sort of regulative enactments which national 
legislatures pass to prevent the growth of 
domestic abuses. 

For this outgrowth of twentieth-century 
conditions is treason or war — treason when 



Hostile Agents in Neutral States 199 

exploited by citizens of a double allegiance, 
and war of a most terrible sort when demon- 
strated by those members of the alien popu- 
lation of a country who take upon themselves 
destructive measures. 

Up to the present time the United States 
appears to have been fairly complacent re- 
garding its rights in this matter. It can- 
not long continue so, because, ingenuous as 
are its public men in their belief that some 
favoring divinity will shield it from the 
debacles and tragedies that affect other 
states, belligerents are bound to appreciate 
the fact that a blow at its industries is the 
easiest approach to the vitals of the enemy. 

With an increase in their activities there 
should come an arousing from slumber, and 
self -queries as to whether the nation, which 
has formally proclaimed itself a neutral, is not 
really getting the sort of blows which bellig- 
erents interchange without the privileges of 
belligerency. Then perhaps the nation will 
stir, and do that which will prove a useful 
precedent for all sovereignties. 



200 Neutral Rights and Duties 

If it does not, and other people are satisfied 
to follow its spineless policy, the civilized 
world will accelerate its pace toward a dark 
age, losing all that has been so hardly won 
by the same supineness which Demosthenes 
found in the enervated and decadent Athen- 
ians. 

To man and nation self-respect is essential 
for existence, progress, achievement! As a 
consequence no principle of international 
law has been more emphatically affirmed as 
basic and essential. Without it there could 
be no sovereignty — no national integrity — 
no insistence upon that sort of obedience to 
the law of the community which originally 
produced coherence, and dignifies the man- 
dates of states. 

Every force follows the line of least resist- 
ance. It is much easier for a belligerent to 
work through thousands of emissaries in 
countries whose factories are turning out the 
munitions and war supplies which arm, feed, 
and clothe their enemy, than to battle with 
the same enemy after it is made terrible 



Hostile Agents in Neutral States 201 

by the purchase of these commodities. 
Therefore the American people in perfect pro- 
portion to their commercial and industrial 
activity can assume that the war now waging 
in Europe will be transferred within their own 
borders if they permit matters to drift, and 
this too while the offending Power or Powers 
are elaborating diplomatic notes which pro- 
test friendship and amity. 

For a country situated as is the United 
States (and the latter is chosen as an example 
for all neutrals whose industries are similar), 
there are two courses either of which it may 
follow as a result of such internal attacks as 
are above referred to, if it does not care to 
declare public war, a step which might easily 
be justified if foreign governments were shown 
to be responsible for the in j uries suffered . One 
— to inanely fuss and fume over the periodi- 
cal destruction of factory and storehouse 
with their contents — the other — to visit such 
terrible punishment upon the individuals who 
have dared to make private war upon it as 
will lead them to think twice before placing 



202 Neutral Rights and Duties 

themselves outside the pale of organized 
society. 

If the two paths thus suggested lead far 
apart, it only emphasizes the necessity of a 
correct choice. It is therefore to be greatly 
regretted that many pacificists mistake in- 
action and temporizing as more desirable 
than a swift calling to account, and thus im- 
peril the neutrality of their country by the 
same counsels with which they make ultimate 
and continuing peace impracticable. 

The surest means toward the achievement 
of world peace and national peace is the 
maintenance of neutrality and the populariz- 
ing among other peoples of those principles 
which neutrals are bound to see recognized 
as a matter of self-interest. But if there is 
any one thing which statesmen and philo- 
sophers are agreed upon it is the quite self- 
evident proposition that neutrality must be 
effective, assertive, and ready to fight if it 
is to have any recognition by belligerents. It 
is therefore incumbent upon advocates of 
peace to heartily indorse a vigorous neutral 



Hostile Agents in Neutral States 203 

policy, if they wish to see the working out of 
ends they have at heart. 

Let us suppose that the sometime upholders 
of a policy of non-resistance see this, and with- 
draw opposition to the sort of rough handling 
of malefactors that a strong government will 
naturally adopt, or that the majority of the 
people are determined in spite of the cavil- 
ings of a minority to stop the destruction of 
their industrial msichmery and its products. 
What can they do? 

1. Publish and distribute broadcast so 
that he who runs may read such statutes 
and adjudications as form part of the body of 
state law and justify legal action by the 
Department of Justice, and such Executive 
proclamations and manifestoes as have been 
called forth by the default of both citizens 
and resident aliens; 

2. Proceed against malefactors who owe 
allegiance to the Government with or without 
the warning above suggested, and with abso- 
lute disregard for the fact that such persons 
were born under a different flag, and may 



204 Neutral Rights and Duties 

have higher, if mistaken, motives, than those 
of the ordinary criminal whose regard for 
himself generally outweighs his loyalty to any 
sovereignty. 

If the act committed is plainly treason or 
misprision of treason, every neutral nation 
will be found to be provided with ample 
machinery to handle the situation. If not, 
the developments of the present European 
war, following hard upon the re-distribution 
of the peoples of the earth by immigration, 
will have the effect of stimulating such 
self -preservative legislation as has been neg- 
lected heretofore, and make good any existing 
deficiency. 

If the act be one that lacks the stronger 
features of the least excusable of all crimes, 
but is still deserving of punishment, no 
government, if not already armed with suit- 
able authority, can well defer providing such 
statutory enactment as will meet the condi- 
tions. This was well understood by the 
Congress of the United States in 1799 when, 
with less occasion for action, it passed the 



Hostile Agents in Neutral States 205 

following law adapted to the requirements of 
that hour: 

"Sect. 5335 — Every citizen of the United 
States," etc., ''who without the permission 
or authority of the Government directly or 
indirectly commences or carries on any verbal 
or written correspondence or intercourse with 
any foreign government or any officer or 
agent thereof," etc., ''in relation to any 
disputes or controversies with the United 
States, or to defeat the measures of the Govern- 
ment of the United States and every person 
being a citizen of or resident within the 
United States and not duly authorized who 
counsels, advises or assists in any such corre- 
spondence," " shall be punished," etc. 

1799 was the year of George Washington's 
death. Since that period the world has 
evolved a thousand new problems for the 
United States, but none greater than that 
which has to do with the maintenance of 
neutrality at times when a large part of its 
population because of their foreign birth are 
greatly interested in the success of one or 
another of the countries at war. 



2o6 Neutral Rights and Duties 

If the nation needed a statute of the char- 
acter indicated more than one hundred years 
ago, it requires something far more compre- 
hensive to-day. 

It is a curious fact that this and other 
similar laws, which appear in the Compiled 
Statutes of the United States were aimed 
at Tories or disloyal Copperheads, while the 
sort of legislation now demanded is required 
to meet the plots of the same sort of recreants, 
as those with whom former generations 
dealt but who pose to-day under the name 
of hyphenated Americans. 

While the principal feature making the 
above classes akin is disloyalty — the object 
sought by the culprits at present is notably 
different from that which was aimed at in 
past periods and is significant. Aforetime it 
was the endeavor of these malcontents to sap 
the belligerent strength of the government. 
To-day the effort is aimed at its neutrality, 
and a suitable maintenance of correct rela- 
tions with belligerents. 

Nothing can more clearly illustrate the 



Hostile Agents in Neutral States 207 

point which has been made in earlier chapters, 
that neutrality is far from being synonymous 
with any status that suggests weakness or 
debility. A neutrality that does not conno- 
tate preparedness and virility is not only use- 
less, as far as the maintenance of peaceful 
relations is concerned, but is frequently more 
dangerous than frank belligerency. 

3. Besides providing for ample notification 
and requiring obedience from its own people, 
a sovereign state which intends to make its 
neutrality respected must in the third place 
frankly and fearlessly address itself to the 
labor of holding in check the alien residents 
in its borders who show an inclination to con- 
spire against its interests. 

The task should not be as difficult as many 
imagine. While the foreigner to be dealt 
with may at first appear to be better char- 
acterized by the Latin word inimicus, which 
denoted a private enemy, than by the word 
hostis or public enemy, and therefore not 
within the reach of statutory enactments 
which provide for the expulsion and regula- 



2o8 Neutral Rights and Duties 

tion of the subjects of a state with whom the 
aggrieved nation is at war, adjudications and 
statements by learned authorities are not 
lacking which indicate that the citizens of a 
country which is making preparation for war 
or threatening hostilities, may be treated as if 
war were already declared. This is set out in 
Section 4067 of the Compiled Statutes of the 
United States, which, besides giving the 
President wide powers, recites: 

Where *' there is a declared war between the 
United States and any foreign government or 
any invasion or predatory incursion is perpet- 
rated, attempted or threatened against the ter- 
ritory of the United States by any foreign " 
government, "and the President makes public 
proclamation of the event," "all subjects," 
etc., "of the hostile nation," etc., "in the 
United States shall be liable to be "appre- 
hended, restrained, secured and removed as 
alien enemies." 

Five years ago the interpretation of such a 
statute would have been different than that 
which should be given it to-day. Then the 



Hostile Agents in Neutral States 209 

world clung to standards that had been 
gradually evolved as the nations, after shaking 
off the cloak of barbarism, worked out a 
system of relations based on good faith. To 
the minds of the epoch preceding the great 
war that is now impoverishing the world — 
** preparations for commencing hostilities or 
invasion," meant acts that were in the open 
and unmistakable. Charges and counter- 
charges since August, 19 14, and evidence 
that cannot be shaken of secret plans 
worked out in our country for the extinction 
or demoralization of other sovereign states 
have shown the danger of relying upon such 
an understanding. 

The moment that a government is satisfied 
by the reports of its agents that plans are 
under way for its undoing it should consider 
itself as at liberty to act. 



CHAPTER XXV 
A NEW problem: aliens and hyphenated 

CITIZENS IN NEUTRAL STATES 

IT has been seen how difficult resident ahens 
* may make it for a neutral to guard its 
own rights. More and more does he threaten 
by embarrassing acts and influences to em- 
broil people who offer him hospitality in 
the wars that are racking other states. It is 
difficult enough to play the r61e of a neutral, 
far harder than to enact the part of a belliger- 
ent. In the latter case forces are unleashed 
that aforetime were restrained by law and 
precept. Simple, primitive hate works its 
ends upon the enemy without much re- 
striction, and non-combatants excuse much 
to berserker rage. In the former the neutral 
is not only expected to maintain with absolute 
correctness all customary relations with the 

210 



Aliens in Neutral States 211 

nations at feud, but to assume many grievous 
responsibilities which are thrust upon it. 
Unenviable as is the lot of a people that 
desires to maintain an impartial attitude 
toward nations that have drawn the sword, 
the hyphenated citizen, alien at heart and in 
heart-allegiance, and the plain unvarnished 
alien, a less objectionable character, threaten 
to provide pitfalls that the wisest ministry 
cannot avoid. 

That this has not always been so is ex- 
plained by the fact that the alien as such, 
ensconced in neutral territory, has only 
recently thrust himself upon the world's 
attention. Up to the period of the Russo- 
Turkish war immigration for purposes of 
bettering one's condition by temporarily 
abiding in foreign lands, was unfashionable. 
Removal to countries near at hand would be 
without purpose, because economic condi- 
tions therein were no better than those which 
existed at home, and a voyage across seas 
for transient residence elsewhere took too 
much time and money to make it practicable. 



212 Neutral Rights and Duties 

People who huddled into the uncomfortable 
steamships of those days were possessed by 
a dread which made them hate and fear 
the governments to which they were subject, 
or by a yearning ambition to better the 
condition of themselves and their children 
by permanent settlement under favorable 
auspices. In direct proportion to their 
numbers therefore, they were imbued with a 
spirit which made them welcome to newer 
countries, whose founders had anticipated 
their dreams, and they readily became bone 
of the best bone in the land which adopted 
them. Subsequent wars being minor in 
character or else waged between peoples 
who had not emigrated in such numbers and 
to such neutral centers as to much affect 
relations, gave no hint that cheap and quick 
transportation was already seriously affecting 
the relations of sovereign states, because of 
the enormous increase of the emigrant wave 
moving toward the West. It was obvious 
that some countries were being depopulated 
— that sections of other lands were becoming 



Aliens in Neutral States 213 

congested, and that knotty problems in 
civics were the result — but few expressed 
apprehension as to the bearing these abnor- 
mal conditions would have upon a war status, 
and world hostilities now raging were far 
developed before the first note of alarm was 
uttered, or any one appreciated the necessity 
of enacting legislation to guard against 
resulting complications. 

This has now fittingly become the task of 
the United States — first — ^because it has 
chosen to be the refuge of more migratory 
peoples than any other land — second — from 
its notable position as the champion of neu- 
trality — and third — ^because it has formed 
the habit of accepting and solving world 
puzzles that affect humanity without warning 
or preparation. 

It is unfortunate in this case that there is 
little to build upon but general principles 
and nothing in the way of precedents. 

It is also unhappily true that the American 
public as such are hopelessly ignorant of the 
situation that is developing. 



214 Neutral Rights and Duties 

Prior to August, 1914, the average citizen 
knew that in single years a million and a 
quarter of foreigners, for the most part non- 
English speaking, were entering the country. 
He was also dimly conscious that the immi- 
grant tide was swelling because of economic 
conditions, and the elimination of obstacles 
that had discouraged travel. 

Beyond that point he did not go. Here and 
there voices were raised in warning because 
the authorities failed to work out any proper 
plan for regulating and handling these 
immense masses between which and the 
resident population of the country there was 
little in common. Other voices, however, 
and these far more numerous and authorita- 
tive, were eloquently depicting the virtues of 
isolated newcomers, elaborating the theory 
of the melting-pot, and drawing somewhat 
fantastic pictures of a new nation which if 
not "conceived in liberty," would arrive at 
such a oneness of thought and ambition as 
to make the state omnipotent and bring in 
the millennium. 



Aliens in Neutral States 215 

It cannot be gainsaid therefore that out- 
side of school-teachers who chafed at the 
miserable appropriations accorded them for 
the instruction of these people, and far-sighted 
manufacturers who had sufficient intelligence 
to note the revolutionary disposition of the 
leadership which has secured control of 
unskilled labor, there has been a disposition 
on the part of the body politic as a whole to 
accept the theory of the optimists and to 
drift. 

What is to be done to overcome this inertia 
before something more positive and satis- 
factory than opportunist measures can be 
framed and enacted? 

The only answer that readily occurs, if it 
once be allowed that inaction is dangerous 
and that Congress does not appreciate 
the fact sufficiently to pass required laws, 
is one that urges a publicity campaign to 
thoroughly arouse the people whose votes 
make and unmake legislatures. Such a 
campaign can be initiated by the Adminis- 
tration in power, by groups of informed 



2i6 Neutral Rights and Duties 

patriots, or by individuals who have facts 
and figures at their command. It makes 
Httle difference in a Democracy where every 
citizen is a sovereign who introduces the 
movement. 

The main point is this: that if it be not 
undertaken, and adequate legislation is im- 
possible without it, then the United States 
is sure to fail in its duty as a neutral — 

First — to its own citizens, who desire to 
shun war. 

Second — to the belligerent governments 
who are injuriously affected by the action of 
enemy mobs or persons living under a neutral 
flag. 

Third — to other neutrals. 

It is from a conviction that no issue now 
before the United States and neutral nations 
similarly situated, outweighs one which has 
to do with the regulation of the members of 
foreign colonies — that this and a former 
chapter have been inserted in a brief treatise 
upon the Rights and Duties of Neutrals. 

Meanwhile, inasmuch as the matter thus 



Aliens in Neutral States 217 

referred to is probably for the first time 
brought to the attention of those interested 
in the Law of Nations as one deeply affecting 
the maintenance of neutrality, it seems pru- 
dent to attach the following facts and figures: 
The six states, Massachusetts, Rhode 
Island, Connecticut, New York, New Jersey, 
and Pennsylvania appear, from figures pur- 
porting to be copied from the Thirteenth 
United States Census, to have contained in 
or about the year 1910— 99»i7i factories, or 
more than one third of all such estabUshments 
in the United States. These represented 
at that time a capital of $8,593,809,000, or 
nearly one half of the whole amount of money 
set apart for manufacturing purposes. The 
same states, which are contiguous to each 
other along the Atlantic seaboard, contained 
in the said year approximately 23,339,674 
people of whom 6,383,993, or more than one 
fourth were foreign-born. 

When it is remembered that masses of the 
latter were so distinctly foreign as to be 
ignorant of English, and that no reference is 



2i8 Neutral Rights and Duties 

made to the millions upon millions who 
confess a foreign parentage and are them- 
selves foreign at heart, or to the millions of 
non-English speaking foreigners who have 
entered this section since 1910, it must 
graphically appear to the least thoughtful 
that the situation may well become em- 
barrassing. 

Let us suppose that foreign states which 
are at war, and whose subjects many of these 
people are, see fit to refuse such accommoda- 
tion as the United States, strictly within its 
rights, requires, or to dare its resentment — 
and that the enemy of the above nations 
also represented by millions of subjects resi- 
dent in America, insist that if the United 
States fails to act, it will be a breach of 
neutrality. 

The American people themselves may be 
right-minded and high-minded. The Ad- 
ministration in Washington may be far- 
sighted and vigorous, but the position of both 
people and Executive must in any case 
remain difficult and dubious because of the 



Aliens in Neutral States 219 

sentiment of the foreign colonies, and any 
action must be taken at risks which need not 
be recited here, until such time as suitable 
regulative legislation is enacted. 



CHAPTER XXVI 

EMBARGO 

'T^HE turmoil in Europe which appears to 
*- be increasing rather than lessening as 
these pages go to press, has seriously affected 
neutrals and is ominous in its threatenings 
of further complications. Already Belgium, 
Italy, Bulgaria, Turkey, and Portugal are 
involved as partisans in the forceful solution 
of issues which prior to the initial acts of the 
war, did not seem to concern them, and other 
countries are finding it difficult to preserve 
their neutrality. 

What nation will be the next? While 
events indicate Powers which are nearest to 
the war maelstrom, juxtaposition is by no 
means the only condition which may hasten 
the answer. Across the Atlantic great trad- 
ing neutral states have been suffering an 

220 



Embargo 221 

interference with cardinal rights that is not 
only humiliating but expensive. It is not 
probable that any of them will act from 
sordid motives, however costly their experi- 
ences, but it is quite possible and desirable 
for them to use that sort of firmness in press- 
ing representations and protests which alone 
makes neutrality respectable. Inasmuch as 
hostilities may easily succeed the most 
diplomatic of ministerial demands, it follows 
that commercial states which are most dis- 
tant from the seat of war may become 
partisan quite as early as those whose terri- 
tories and political concerns are particularly 
affected by the issues of the hour. 

It is this fact that makes it equally desir- 
able for all neutral states which are reluctant 
to throw down or accept the gauge of battle, 
to study means and measures which fall 
short of war but can be used to vindicate 
the dignity of a sovereignty. Of these 
Embargo is the most important, although 
given a subsidiary place by most interna- 
tional lawyers. 



222 Neutral Rights and Duties 

Hostile Embargo is defined by Hall as a 
form of reprisal which consists in the seizure 
of ships of the offending state at sea or of any 
property within the state, whether pubHc or 
private, which is not intrusted to the pubHc 
faith. Hall further says that Embargo is 
sequestration, and that vessels subjected to 
it are not condemned so long as abnormal 
conditions exist that caused its imposition. 
If peace is confirmed — they are released — 
if war breaks out they become liable to 
confiscation. 

For the purpose of bringing the matter to 
the reader's attention, it is proper to note 
that this author is apparently in accord with 
Wheaton and others who suggest that if 
hostilities follow the original seizure, the act 
is to be considered as one of war from the 
beginning — hostili animo ah initio. While 
the latter quote Sir Walter Scott (see the 
Boedus Lust, Rob. Adm. Rep., v., 246), their 
conclusions are seriously questioned, and 
with good reason, by Oppenheim. No suffi- 
cient argument is introduced to show why an 



Embargo 223 

act which was not intended to be war, auto- 
matically becomes so by some future event, 
and it is very evident that the acceptance of 
any such theory which affects property in- 
terests in a vital manner might lead nations 
to declare war when they would far prefer 
to first try out coercive measures that were 
moderate in comparison. It would also dis- 
courage neutrals from acting when their 
interests required them so to do. 

With this passing reference to a subsidiary 
matter which, wrongly understood, may read- 
ily deprive the doctrine of hostile embargo 
of its value, we are in a position to discuss 
the worth of the latter to neutrals, bearing 
in mind a great author's assertion that by 
reprisal "all acts otherwise illegal are made 
legal" — a statement which becomes partic- 
ularly true when applied to embargo when 
used as a protest by non-combatants who 
only seek to recoup themselves for injuries 
suffered at the hands of belligerents. 

If hostile embargo is useful to nations at 
war, it must be doubly so to those at peace: 



224 Neutral Rights and Duties 

1. Because in the former case it is only 
one of many means to an end — in the latter 
it presents to the neutral the most effective 
instrument, if not the sole one that can be 
used to accomplish its purpose; 

2. Because the belligerent, although it 
may hesitate to acknowledge it, is more 
dependent upon the neutral than the neutral 
is upon the belligerent. 

The very fact that a nation is engaged in 
war causes the people of states not thus 
involved to withdraw from other intercourse 
with the combatant than such as has to do 
with the sort of trade that tempts their 
cupidity. Obliged to adapt themselves to 
conditions, they become more or less self- 
reliant and independent. Should an embargo 
be laid upon their neutral vessels or posses- 
sions by the belligerent, it is doubtful if other 
property will be secured than that of venture- 
some neutral citizens. The neutral nation 
will be affected, but not seriously so. 

Consider the status of a belligerent under 
like circumstances. Such of its possessions 



Embargo 225 

as were in neutral hands at the beginning of 
the war have remained there — others have 
been added to avoid the danger of having 
them seized in case of enemy conquest. It 
needs the use of neutral harbors to provision 
and refit its ships, and such commodities and 
supplies as the neutral is free to furnish. 
The proclamation of an embargo not only 
embarrasses its relations with the neutral, 
but may cause it to lose strategic points of 
value in its relations to the enemy. 

While the above facts should not only lead 
a belligerent to carefully refrain from the 
sort of embargo that is initiated on the plea 
of necessity, an excuse which Hautefeuille 
rightly rejects with impatience, and should 
also have the effect of causing it to avoid 
trying neutral patience, they ought to 
strengthen the hands of the neutral Power 
that is not too weak to resist invasion. There 
is belligerent money in its banks, belligerent 
supplies on its docks, or moving thereto, 
interned ships, war vessels in its ports, and 
mayhap merchantmen moving in the waters 

IS 



226 Neutral Rights and Duties 

that it dominates. These all are nothing 
more than hostages for belligerent good 
behavior and reasonable conduct. 

A self-respecting state, provided it is 
prepared to defend itself in case of military 
operations against it (and no neutral that 
really wishes to maintain peaceful relations 
can afford to be otherwise), is thus in a 
position not only to insist upon comity and 
good faith on the part of the belligerent, but 
to perform its duties toward its own people, 
toward the enemy of the offending belHgerent, 
and toward the community of civilized 
states. Such is the weapon of hostile embargo 
with which circimistances not infrequently 
arm neutrals. If non-combatants are to 
have more consideration in the future than 
in the past, it will be used with telling effect. 

Should it happen however that the neutral 
state is not prepared to go to this length, 
there is another form of embargo, viz., 
Civil Embargo, that is not unfamiliar to the 
American people who used it in 1807. This 
is defined by Richard Henry Dana in his 



Embargo 227 

notes to Wheaton as the "Act of a govern- 
ment detaining the ships of its own people in 
port." As Mr. Dana has pointed out, a 
civil embargo amounts in practice to a 
nation's interdiction of commerce — ''for it 
would usually be accompanied with a closing 
of its ports to foreign vessels"; and the dis- 
tinguished commentator adds that "if the 
motive for this interdiction is simply munici- 
pal, and not in the way of reprisals or hostil- 
ity to foreign Powers, it has claims to be 
acquiesced in by them. " 

While a civil embargo that is purely 
negative in its attitude toward foreign 
governments, and therefore less objection- 
able, to them, might become serviceable to a 
neutral state that lacked a grievance, it is not 
the sort that we now have in mind in dis- 
cussing the usable measures which a neutral 
Power can use to vindicate its sovereignty. 
This should be clearly by way of reprisal, 
being distinguished from hostile embargo by 
avoiding the seizure of foreign possessions 
and making itself felt through the embarrass- 



228 Neutral Rights and Duties 

ment caused the belligerent at whom it is 
aimed. 

The fact that it has a retroactive effect 
upon the people of the government by whom 
it is adopted and also may readily bring 
about unforeseen complications unless wisely 
planned, should by no means render it as 
impracticable as it was made to appear by 
Jefferson's unfortunate experiment during the 
first decade of the last century. *'My 
principle," said that President, "is that the 
conveniences of our citizens shall yield 
reasonably" **to the importance of giving 
the present experiment so fair a trial that on 
future occasions our legislators may know 
with certainty how far they may count on it 
as an engine for national purposes. " 

While the words are fair and the disposi- 
tion of the Executive was good, it is unfor- 
tunately true that the act was so wholesale 
in its character and unhappy in its results as 
not only to lead to the early substitution of 
the non-intercourse act of 1809, but to destroy 
its value as a precedent unless it is to serve 



Embargo 229 

as a warning against careless legislation. It 
is for this purpose that it has been given 
attention. 

No advocate of forceful measures for the 
maintenance of a self-respecting and respected 
neutrality is prepared to recommend the 
adoption by neutrals of plans and policies 
which will in any way unfavorably affect 
their own population. Meantime it must be 
recognized that, short of war, there are but 
few expedients that they can use to advantage 
to command the attention of a polite but 
unscrupulous belligerent. It behooves them, 
therefore, in time of stress to make close 
study of the various features which charac- 
terize the civil embargo. Modified and 
shaped to meet existing conditions, it may on 
occasion put a neutral state in a far more 
favorable position in its relation with bel- 
ligerents than it could otherwise hope to 
secure. 



CHAPTER XXVII 

DUTIES AS DEFINED BY PROCLAMATION 

T^HE fact that the foregoing chapters have 
'■' abridged reference to that part of the 
Positive Law of Nations which affects neu- 
trals, in order to discuss principles and 
policies, makes it not undesirable that some 
space should be given before closing to the 
sort of specific injunctions which should be 
given a neutral people by its government in 
time of war. 

These are admirably epitomized in the 
proclamation of neutrality made by the 
President of the United States at the outbreak 
of war between Italy and Austro-Hungary 
(which purports to be a duplicate of the 
several proclamations issued by the Executive 
as state after state became embroiled in the 

existing hostilities), and are unquestionably 
230 



Duties Defined by Proclamation 231 

the result of more than a century of admin- 
istrative endeavor to make the American 
people neutral in fact as well as in word. 

To understand the full significance of 
this oflQcial communication it will be well, 
before giving it careful examination, to 
recall : 

1. That the United States is the greatest 
of neutrals, and that its services to the cause 
have been of enduring value, and are so rec- 
ognized. 

2. That it was George Washington who 
inaugurated measures to insure the neutrality 
of a disinterested state by a proclamation in 
1793 which instructed proper officers to 
institute proceedings ''against all persons 
who shall within the cognizance of the 
courts of the United States violate the law of 
nations with respect to the Powers at war or 
any of them. " 

3. That the United States, as Oppenheim 
does not hesitate to state in his great work 
on International Law, "was the most promi- 
nent and influential factor" in advancing the 



232 Neutral Rights and Duties 

rights of neutrals by its attitude toward 
neutrality from 1793 to 181 8. 

4. That it was the Congress of the United 
States that passed the first foreign enlistment 
act which codified former and important 
enactments in 18 18, an example that was 
followed by Great Britain, which passed a 
similar measure in the succeeding year. 

5. That the decisions of the United 
States Courts, many of which are briefly 
digested by Dana in his copious notes on 
Wheaton (p. 534 et seq.), have brought into 
the body of international law factors of 
inestimable value to neutrals. 

With such introduction, which will suggest 
to the student the different steps which the 
American people have taken in evolving the 
law which is now on their statute books or 
understood by their Executive to express their 
will, and without repeating the preamble of 
President Wilson's proclamation, we propose: 

I. To quote verbatim that part v/hich 
is statutory and immediately introductory 
thereto; and 



As Defined by Proclamation 233 

II. To add a brief abstract of further 
injunctions contained therein. 

I. I, Woodrow Wilson, President of the United 
States of America ... do hereby declare and 
proclaim that by certain provisions of the act ap- 
proved on the 4th day of March a.d. 1909, com- 
monly known as the ** Penal Code of the United 
States," the following acts are forbidden to be 
done, under severe penalties, within the territory 
and jurisdiction of the United States, to wit : 

1. Accepting and exercising a commission to 
serve either of the said belligerents by land or by 
sea against the other belligerent. 

2. Enlisting or entering into the service of 
either of the said belligerents as a soldier, or as a 
marine or seaman on board of any vessel of war, 
letter of marque, or privateer. 

3. Hiring or retaining another person to 
enlist or enter himself in the service of either of 
the said belligerents as a soldier, or as a marine 
or seaman on board of any vessel of war, letter 
of marque, or privateer. 

4. Hiring another person to go beyond the 
limits or jurisdiction of the United States with 
intent to be enlisted as aforesaid. 

5. Hiring another person to go beyond the 
limits of the United States with intent to be 
entered into service as aforesaid. 



234 Neutral Rights and Duties 

6. Retaining another person to go beyond the 
limits of the United States with intent to be 
enlisted as aforesaid. 

7. Retaining another person to go beyond 
the limits of the United States with intent to be 
entered into service as aforesaid. (But the said 
act is not to be construed to extend to a citizen 
or subject of either belligerent who, being trans- 
iently within the United States, shall, on board 
of any vessel of war, which, at the time of its 
arrival within the United States, was fitted and 
equipped as such vessel of war, enlist or enter 
himself or hire or retain another subject or 
citizen of the same belligerent, who is transiently 
within the United States, to enlist or enter 
himself to serve such belligerent on board such 
vessel of war, if the United States shall then be 
at peace with such belligerent.) 

8. Fitting out and arming, or attempting to 
fit out and arm, or procuring to be fitted out and 
armed, or knowingly being concerned in the 
furnishing, fitting out, or arming of any ship or 
vessel with intent that such ship or vessel shall 
be employed in the service of either of the said 
belligerents. 

9. Issuing or delivering a commission within 
the territory or jurisdiction of the United States 
for any ship or vessel to the intent that she may 
be employed as aforesaid. 

10. Increasing or augmenting, or procuring 



As Defined by Proclamation 235 

to be increased or augmented, or knowingly 
being concerned in increasing or augmenting, 
the force of any ship of war, cruiser, or other 
armed vessel, which at the time of her arrival 
within the United States was a ship of war, 
cruiser, or armed vessel in the service of either of 
the said belligerents or belonging to the sub- 
jects of either, by adding to the number of guns 
of such vessels, or by changing those on board 
of her for guns of a larger caliber, or by the 
addition thereto of any equipment solely ap- 
plicable to war. 

1 1 . Beginning or setting on foot or providing 
or preparing the means for any military expedi- 
tion or enterprise to be carried on from the 
territory or jurisdiction of the United States 
against the territories or dominions of either of 
the said belligerents. 

The above recitation from the Penal Code 
is followed by orders and instructions : — 

II. Prohibiting use of waters of the 
United States by armed belligerent vessels 
for the purpose of preparing for hostile 
operations, or as posts of observation upon 
the enemy. 

Specifically forbidding any belligerent ship 
of war to make use of a port or waters of the 



236 Neutral Rights and Duties 

United States for a war station, or to secure 
facilities; or to leave any harbor or waters 
of the United States from which an enemy 
vessel shall have previously departed until 
twenty-four hours thereafter. 

Requiring any belligerent warship that 
enters United States waters after the time 
when notification takes effect, to depart 
within twenty-four hours, except in case of 
stress of weather or need of supplies or repair, 
in which case the authorities are to require 
departure after necessary supplies are re- 
ceived or repairs finished, arrangements being 
made however that such a ship shall not 
depart (as before provided) within twenty- 
four hours after an enemy ship has cleared, 
and that if there are several vessels of op- 
posing belligerents in given waters at the 
same time, provision shall be made for 
alternate departure; and 

Providing that such supplies as are above 
referred to shall only be of sufficient pro- 
visions, etc., as are requisite for the subsist- 
ence of the crew, and so much coal as will 



As Defined by Proclamation 237 

take the ship to the nearest port of her own 
country, or, if she carry sail, half the amount 
of coal necessary for that purpose. Also that 
such a ship shall not return to the waters of 
the United States again within three months 
without permission, unless she has first en- 
tered a port of the government to which she 
belongs. 

The proclamation further calls attention 
to the fact that the treaties and statutes 
of the United States and international law 
enjoin all persons in the territory of the 
United States to obey its laws — warns all 
citizens and residents in the United States 
that while expressions of sympathy are not 
restricted, they must not originate or or- 
ganize military forces in aid of a belligerent 
— and that while they may, without restric- 
tion, manufacture and sell munitions and 
contraband, they cannot carry such articles 
on the high seas for the use or service of a 
belligerent, nor convey belligerent soldiers, 
nor attempt to break a blockade, without 



238 Neutral Rights and Duties 

incurring the risk of hostile capture and 
penalties. 

While this state document testifies to the 
vigilance of the United States Government 
in endeavoring to perform its obligations 
toward belligerents, its main features are 
incorporated in these pages because they 
are so admirably qualified to instruct citizens 
in regard to their personal status as the 
subjects of a neutral country. Meantime 
we cannot forbear from remarking that if 
anything has been overlooked in this endeavor 
to impress upon the people of the United 
States the duty they owe to themselves and 
to other nations, it has been rather in the 
methods adopted to provide for its circulation 
than in the matter contained. 

As has been pointed out in recent chapters, 
an unfortunate proportion of the population 
of the country are ignorant of the English 
language and only receive such part of 
governmental communications as their racial 
leaders choose to place in their hands. The 
very importance of the proclamation should 



As Defined by Proclamation 239 

therefore bring home to the reader whose 
attention is called to this matter the necessity 
of providing for the printing of such publica- 
tions in various languages in order that they 
may have the effect upon our heterogeneous 
public that is desired by the President. 



CHAPTER XXVIII 

SOME CONCLUDING OBSERVATIONS 

INTERNATIONAL law is looked upon 
* from two points of view: that of the com- 
munity of civilized states ; that of the single 
state with its selfish interests very much 
in mind. 

As a consequence it has been framed and 
interpreted when framed so as to square with 
the theory or plan that best suited the con- 
venience of those to be affected by it. That 
is why its historic aspect is so marvelously 
bewildering to the student, who finds it, 
when peace encourages commercial relations 
between nations, assuming the dignity of a 
science; but when the gates of Janus are 
open, denied by the men who teach it in the 
universities, except as a dead thing that has 

been. 

240 



Some Concluding Observations 241 

In closing a discussion which has had to do 

not only with matters immediately affecting 

the United States, but with principles which 

underlie the well-being of human society, it is 

fitting to call attention to these facts in order 

that we may better prepare ourselves to meet 

further problems. In due course we have 

considered the doctrines of blockade and 

contraband, questions dealing with the 

freedom of the seas, and measures and 

conditions calculated to affect favorably or 

unfavorably the future of our own people. 

It will not be surprising if, in so doing, we 

have been impressed anew with the truth 

that neutral rights automatically receive 

recognition when the interests of the race 

are uppermost, and that neutral duties are 

emphasized at times when specific nations 

control the center of the stage; or — to put it 

differently — that neutrals gain ground when 

their point of view, which is generally that 

of the community of states, commands 

attention, and lose when it is difficult for 

them to secure a hearing. Should this be the 
16 



242 Neutral Rights and Duties 

case, let us hope that it will not encourage 
pessimism or skepticism, on the ground that 
the crystallized wisdom of the past, as ex- 
pressed in international law, is something 
worthless. 

There is surely no adequate reason why it 
should do so. First, because no one has ever 
claimed that the law of nations had reached 
its ultimate form, and second, because 
everyone has been and is perfectly conver- 
sant with the fact that it is little more than a 
codification of various compromises. As a 
matter of fact a frank appreciation of condi- 
tions ought to have a stimulating effect and 
lead to constructive effort. It is a great thing 
to know what is the matter with past plans 
that have not carried, and perils that must 
be guarded against in future building. To 
the proper spirit, the consciousness of having 
known that some lines of past endeavor could 
not and ought not to succeed because of 
inherent weakness, can be no handicap to 
new effort. Failures of this nature cor- 
roborate the correctness of a sane judgment. 



Some Concluding Observations 243 

Why should it be otherwise with the 
student of international affairs who sincerely 
desires the tiltimate enthronement of law? 
He has been perfectly conscious that inter- 
national law was arbitrary, illogical, and 
founded on wrong premises ; that the point of 
view of the individual state, rather than that 
of the sisterhood of nations, in normal times 
and relations, had shaped existing rules and 
customs. At the same time he has not been 
ignorant of that economic ethical law — the 
natural law of Grotius — which, recognized or 
unrecognized, is always dominant and con- 
trolling. Should he not therefore welcome an 
upheaval, like that which is tossing about the 
present generation, as a cleansing fan which 
will sweep away much litter, and clear the 
way for some honest building? 

All that is now happening was strangely 
enough foretold by William Edward Hall (a 
name held in high reverence by international 
lawyers), August, 1889, in a preface to his 
work on the Law of Nations. After noting 
that recent centuries had indicated a resur- 



244 Neutral Rights and Duties 

gence of law succeeding the apparent breaking 
down of restraint in great conflicts, this emi- 
nent observer points out that something 
exceptional in the matter of wars may well be 
anticipated by his contemporaries, in which 
'* questions of half a century will be given all 
their answers at once," and adds the follow- 
ing impressive sentences which may well be 
borne in mind by those who have faith in the 
ultimate triumph of law : 

"If the next war is unscrupulously waged it 
will also be followed by a reaction toward the 
strengthening of law:" 

"It is a matter of experience that times 
when International Law has been disregarded 
have been followed by periods in which the 
European conscience has done penance. *' 

We have said that international law is 
looked upon from two points of view. May 
it now be added, with the expectation that 
the individualist will agree, that no law of 
nations is of any value whatever unless the 
point of view of the single state is subordi- 
nated to that of the sisterhood of nations? To 



Some Concluding Observations 245 

those who regard all outside of the borders 
of their native land as "barbarians," this 
statement may seem absurd, and there will 
be those who will feel much the same way 
although they are far from being exclusive, 
and are only properly patriotic. 

However this may be, is there any way of 
escape? Our fathers recognized the indi- 
vidual man as free and the arbiter of his own 
fortunes, but could find no way of securing to 
him his rights without establishing a govern- 
ment of laws. It is emphatically the same 
way with the nations. Each constituent fac- 
tor in the Society of States is jealous of its 
independence and impatient of dictation. 
Notwithstanding this fact it is absolutely 
dependent upon a reign of law if it is to be 
protected from the aggression of others and 
to maintain those privileges which it claims. 
To secure such conditions it must voluntarily 
surrender something of its own will to the 
expressed dictation of its peers which are 
none less than sovereign states themselves. 

It is because this has not been done in the 



246 Neutral Rights and Duties 

past that the law of nations has proved so 
unsatisfactory in a crisis. Where municipal 
law, while protecting each citizen, has hedged 
him about so that the conduct of his affairs 
has been somewhat modified by the normal 
requirements of the public; international 
law has permitted individual states either as 
belligerents, or as historic nations with a 
record for belligerency, to dictate to all other 
sovereignties either through unnatural rules 
and customs or with the "mailed fist. " One 
does not have to be wise in philosophy or 
affairs to realize how insufficient and un- 
reasonable is such a code — nor how impos- 
sible when the welfare of neutral Powers is 
at stake. 

In so far, then, as the law of nations has 
heretofore contained in itself that which was 
flagrantly bad and unstable is there not 
cause for genuine rejoicing because its 
fallacies have been exposed and because 
many of its arbitrary creations have been 
wrecked? Such exposure and destruction 
will be found to have left unscorched rules 



Some Concluding Observations 247 

founded on eternal principles, however tem- 
porarily flouted and mishandled by the 
unscrupulous. Sometimes more is accom- 
plished by tearing down that which is in- 
jurious, than in erecting that which is 
weakly good. Aside from the positive 
betterment of conditions that comes about 
with the correction of error, the occasion 
gives an opportunity for the construction of 
something stable and permanent. 

Shall we not hope that the close of the 
present conflict in Europe will find the United 
States: 

1. Reconciled to the breaking down of 
principles not founded upon the law of 
nations. 

2. Insistent that a corrected and purified 
international law shall safeguard the normal 
relations of states. 

3. Prepared, so that with the next great 
conflict it can forcefully prevent the breach 
of laws which directly or indirectly affect its 
welfare. 

To Hautefeuille, whose frequent references 



248 Neutral Rights and Duties 

to the primary law must be justified in these 
days when nations have had to fall back on 
fundamentals, the last duty and right — 
devoir et droit — of neutrals lies in an un- 
flinching resistance to every belligerent 
aggression, and in a Preparedness that will 
make such resistance effective. 

During the present war the United States 
has perhaps properly confined itself to repre- 
sentations and protestations. These are well 
enough in their place, but international law 
will never assume the position which belongs 
to it, nor non-belligerent nations secure their 
rights, until neutrals are themselves pre- 
pared single-handed or in company to join 
battle in vindication of principles to which 
they are committed. 



INDEX 



Alien, malefactors to be sharply handled, 198; residents 
to be checked by neutral, 207; a new problem, 210 et seq. 

Allies, attitude toward Declaration of London, 105, 106, 
107; action of, iii; taking neutral ships to harbors of, 
112; not in control of certain waters, 116; use of muni- 
tions, 122; action on contraband, 154 

Ambassadors, etc., status of, when conspiring, 196; treat- 
ment of certain, 197 

America, War of 1812, 12 

American, attitude in Lusitania matter, 29, 30 ; ports, ill; 
doctrine, 165 

American citizenship, referred to by President, 189 

American Civil War, rules of blockade, 82; blockade of 
Confederate coast, 95, 121 

American Government, attitude of, 20; withdrawal of 
overtures, 104 

American people, choice between peace and righteousness, 
23; not unneutral, notwithstanding opinion, 192; en- 
dangered by belligerent activities, 201 ; affected by 
sentiment of foreign residents, 218, 219 

Americans, on liners, 49, 50, 54; sympathy of, 193, 194; 
hyphenated, likened to Tories, etc., 206; ignorant of 
immigrant complications, 213, 214 

Ammunition, 138 

Ancipitis usus, 137, 146 

Armed neutralities, 92 

Armenian, case of, 48 et seq. 

Arms, 138; absolute contraband, 148 

Arthur, the, 94 

Artillery, new conditions, 13 

Austria-Hungary, affected by new form of blockade, loi; 
attitude toward Declaration of London, 105; attempt 
to blockade goods to, 1 1 1 

Authority, when to be heeded, 78 
249 



250 Index 



Belligerency, abnormal status, 133 

Belligerent, use of embargo, 223 et seq.\ limitations of, 20; 
aggressive acts of, 33; Netherlands, 43; treatment of 
convoyed ship, 45 ; use of neutral flags, 56 et seq. ; Govern- 
ment's rebuff of neutral, 62 ; misuse of neutral territory, 
62; as innovator, 67, 70; normal sphere of, 76; test of 
action, 72; certain supremacy of, 78; as to dominion 
of, 78 ; necessity, 79 ; chafing over rules, 82 ; affected by 
changes, 82; as to blockade of neutral, 120; as to acts 
of, 129; activities an imposition, 143, 164; _ claim to 
preempt neutral ships, 146; affected by changing times, 
174; striking enemy through neutral, 200; restrictions 
on, by proclamation, 233 et seq. 

Belligerents, not to dictate future law, 29; action of, when 
suicidal, 36; making rules, 93; response to query of 
United States, 104; neutral refusal to surrender rights 
to, 115; affected by performance of duty by neutral, 
168 etseq., 171-173 

Belligerent agents, in neutral states, 195-209; affected by 
neutral rights, 197; to control non-resident subjects, 197 

Bermuda, case of, 129, 164 

Blockade, 82 et seq., 120; no ground for, on high seas, 17; as 
to convoy in time of, 39; episodes of, in 19 14, 66; neutral 
attempt to defend law of, 69; neutral attitude toward 
changed law of, 71; field of, 77; high act of sovereignty, 
83; summary of London Declaration regarding, 89; 
effective, 88, 92 et seq.; runners, 95; paper, 92; de facto, 
94; discussion of practice of, 102; submarine, 109, no; 
by Order in Council, 113; of German ports, 114; Civil 
War, 121; as to defensibility of extending, 123 et seq.; 
not unreasonable doctrine, 134; proper limit of, 141 

British, 56; interference with neutral trade, 124; use of neu- 
tral flag, 60; zone, 39; proclamation, features of, 115; dec- 
laration reference to Germany, 1 13 ; grounds for action, 
118 

British Government, Armenian incident, 49, 56; blockade 
of neutrals, 87; as to Declaration of London, 105; ac- 
ceptance of American doctrine, 165-, see Orders in Coun- 
cil 

Bryan, resignation of, 23, 25; effect of his platform, 28 

Bynkershoeck, quoted, 83 

Cargoes, transshipment of, 40 
Carnegie endowments, 86 
Casus belli, 1 10 



Index 251 



Censor for neutral news agencies, 51 

Central Powers, blockade of, 39; at disadvantage, 122; 
action on contraband, 154 et seq.; attitude toward 
Declaration of London, 104 

Christianity, teachings of, 25 

Cleveland Conference, 3 

Confederate coast, blockade, in American Civil War, 95 

Confiscation, 92, 145; of goods, when, 161 

Connecticut, 218 

Consolato del Mare, 26 

Continuous voyage, 112, 145, 123 et seq.', construed, 107 

Contraband, 127 et seq.; further defined, 151 et seq.; epi- 
sodes in 1 9 14, 66; neutral defense of positive law of, 69; 
neutral attitude toward changes in, 71; corollary of 
blockade, 77; pushing doctrine of, 11 1; concealed, 112; 
consigned to neutral for enemy, 112; copper, 1 13 ; author- 
ity to seize, 121; neutral freedom to trade limited by 
concessions as to, 123; declaration making cotton 
contraband, 126; unqualified contraband cause of 
strife, 135; doctrine unsatisfactory, 136 et seq.; absolute, 
144 et seq.; 136, 138, 162; conditional, 146, 162; lists of, 
147 et seq.; when conditional contraband becomes 
absolute, 148 et seq.; modification of list, 156; carriage 
of, 159 et seq.; continuous voyage, 159; prohibition af- 
fecting, municipal, 160; rules may become oppressive, 162 

Convention, international, neutral attitude in, 80 

Convoy, 39 et seq. 

Copperheads, likened to "hyphens," 206 

Cotton, declaration making c. contraband, 126 

Cotton bales, use to conceal copper, 1 13 

Dana, Richard H., 226, 232 

Declaration of blockade, 84 et seq. 

Declaration of London, matters not settled by, 33; as to 
convoy, 42; defense of blockade, etc., 86, 87, 88, 92; 
blockade question of fact by, 96 et seq.; standing of, in 
Europe's war, 104, 105, 136 et seq., 140; regulations as to 
contraband, 147; as to new lists, 149; attitude of war 
powers toward, 151; United States withdraws sugges- 
tions, 153; referred to, 161; as to duties of neutrals, 169 

Demosthenes, quoted by Phillimore, 131 

Denmark, receipt of enemy goods by, 41 

Distress, vessels in (blockade), 89 

Doctrinaires, rulings accepted as law, 141 

Doctrine, regarding artificial, 159 



252 Index 



Doctrines, as to doing away with objectionable, 155 
Dominion, criterion of, 12, 13 ; justifiable as a standard, 71 ; 
definition of, 71; by right or might, "^2^ 74; vindicable, 
72, 73 ; valid exercise of, 85 ; criterion of blockade, 94 

Eastern Hemisphere, 66 

Effectiveness, as requisite of blockade, 92 et seq. ; ought not 
to vindicate blockade, 93 ; no basis for extension of block- 
ade, 123 et seq. 

Embargo, 220 et seq.; civil, 226 

Enemy, neutral participation in trade, 34; neutral citizens 
in service of, 55 ; fiag, 58; exports, 39; control of coast of, 
85, 86; coast-areas of, 98; receiving goods through 
neutral ports, 106; navigation by, 107; consignment 
for, 112; injured by British policy, 114; condition of, 
not a suitable index of efficient blockade, 124; affected 
by attack on neutrals, 199; private and public e. dis- 
tinguished, 207; insistence of, that neutral shall resent 
imposition, 218 

England, War of 1812, 1 1 ; as to Declaration of London, 104 

English Channel, blockade of, 103; war zone, 107 

Escape from submarines, 50 

Explosives, include what, 154 

Flad Ozen, case, 19 

Flag, British use of neutral, 56 et seq.; United States 

respect for, 56; law in Massachusetts, 57; vessels with 

United States flag detained, 106 
Fleet, dispersion of, on blockade, 88 
Foreign-bom citizens, referred to, 189 
Foreigners, domiciled in a neutral country, 196; number of, 

annually entering U. S., 214; in seaboard states of U. S., 

218, 219; proclamations should be in language of, 238 
Fortress, new conditions, 13 
France, 106; as to Declaration of London, 104 
French Government, decree of, iii; adoption of British 

list of contraband by, 150 

German, decree of Feb. 4, 109; submarine, 109 
Germany, application of precedents, 12 ; submarine policy 
a danger to, 36; use of submarines by, 49; affected by 
new form of blockade, loi; proclamation of war zone, 
107; independent of her ports, iii; referred to, 113, 114; 
neutral countries adjacent to, 122; action regarding non- 
contraband, 155 



Index 253 



Great Britain, 106; Mason and Slidell incident, 11; theory 
of war zones, 36; submarine warfare a precedent for, 36; 
theory of blockade, 40; war with Netherlands, 42; atti- 
tude toward convoy, 44; search of neutral warship, 46; 
on use of flag, 58, 62; claim as to blockade rights, 87; af- 
fected by new form of blockade, loi; blockade of 
waters about, 103; Grey's claim as to, 124; adds to 
contraband, 152 

Grenville, Lord, 132 

Grey, Sir Edward, note of February 19, 191 5, 59; letter of 
defense, 177 et seq., 122 

Grotius, 130; quoted, 6, 83; to Oppenheim, 136, 137, 243 

Hague Conference, of 1907, 86, 170 et seq. 
Hall, W. E., 5; embargo defined by, 222, 243 
Hautefeuille, L. B., 225, 247 
Holland, receipt of enemy goods by, 41 
Hyphenated citizens, a new problem, 210 

Immanuel, case of, 129 

Immigrants, basis for future trouble in international 
matters, 195 et seq. 

Immigration, slovenly, policy of U. S., 195; to time of 
Russo-Turkish war, 211 

Individuals, affected by Law of Nations, 102 

Industries, effect of blow at, 199 

Innovations, belligerent, 66 et seq.', submarine, 109; 
American, 121 

International Law, new factor in, 195; self-respect a princi- 
ple of, 200; conditions opportune for recasting of, 239 
et seq. 

Issues, false, 10 et seq. 

Jefferson, President, civil embargo of, 228 
Jurists, attitude toward blockade, 83 ; acceptance of Ameri- 
can doctrine, 165 

Kamtchatka, 17 
Kent, Chancellor, 127 

Law of Nations, control of foreign residents, new problem 
for, 218; prophetical preface in Hall's treatise on, 243, 
244; conditions opportune for recasting of, 239^^^ seq. 



254 Index 



London Conference, see Declaration of London 

Lordship, yy 

Lusitania, incident of, 22 et seq.y 48 

Manufacture of arms, etc., things entering into, 138 
Manufacturing plants, destruction of, 196; one third of, in 

certain States, 218 ^ 
Mason and Slidell incident, 1 1 
Massachusetts, 218 
Matamoras, 164 

Merchant Shipping Act, on use of flag, 58 
Military supplies, 138; absolute contraband, 147 
Municipal, prohibition covering contraband is, 160 
Munitions, export of, 122; absolute contraband, 148 
Montesquieu, 188 

Nassau, 164 

Natural Law, relations of innovations to, 70 ; war abnormal 

by, 133 

Naval Conference, see Declaration of London 

Naval war, 31 

Necessity, as grounds for Orders in Council, 118, 119; 
rejected as an excuse by Hautefeuille, 225 

Netherlands, 1781 convoy, 43 

Neutral, animus toward belligerent, 53; difficult path of, 
48; influence, 8 et seq., 28; matter opened to, 35; status, 
9; right course of, 23, 73; may be pacificist, 25; non- 
combatant, 26; may injure self, 54; flag, 56 et seq., 62 ; to 
dictate law of future, 29; participation in enemy trade, 
34; duty to scrutinize novel rules, 36; acts justifying 
action by, 37; caution in arming, 40; consignments to, 
reaching belligerents, 40; Netherlands as, 43; vessels 
immune under convoy, 44; ship on seas part of home 
country, 4.6; function of n. government in war time,_67; 
interest in conventional law, 68; recasting doctrines 
would relieve, 141; more harmed by blockade than 
enemy, 143; goods when confiscated, 145; restraints on 
neutral trade, 100 et seq., 154; guided by principles, 171 ; 
obligations burdensome, 173; necessity for vigorous 
action, 177; connection with eleemosynary enterprises, 
181; right to express opinion, 186, 192; sympathy of, 
when interest affected, 193; must hold alien in check, 
207; aggressive policy of, 74; rights to be insisted on, 
when, 76; course when law fails, 75; to claim wider sea 
control, 80; attitude toward blockade, 84, 92, 94; ports, 



Index 255 



blockade of, 87, 120, 121, 124; avoidance of troubles, 88; 
ships in port (blockade), 89; theory of blockade, 93; 
ports, cargoes bound to, 106; right to trade, 129; attitude 
of combatant toward, 131 ; embargo, as a neutral weapon 
of offense, 225; may fall back on civil embargo, 226; 
responsible for future of International Law, 248 

Neutrals, affected, 11, 14, 18; limited sovereignty of, 16; 
attitude of belligerents toward, 17; coalition of, 24; 
at sea, 31 et seg.; reply of exporting neutrals, 41 ; part of 
war, 51; enfranchised, -when, 79; submarine blockade of, 
ineffective, no; Orders in Council hurtful to, 117; 
affected by oppressive rules, 163; value of embargo to, 
223 et seg. 

Neutral citizens, rights of, 22 ; instructed as to nghts and 
duties, 233 et seg. 

Neutral duties, as defined by proclamation, 230 et seg.y 
168-173; to conspiring belligerents, 196 et seg.', because 
of alien residents, 216; see Proclamation, 233 et seg. 

Neutral goods, in country of belligerent, 34; open to 
belligerent criticism, 136; transshipped to enemy, 145; 
outsideof guarded waters, 160; confiscated, when, 161 

Neutral Powers, rules not to be altered by, 31; to be noti- 
fied of blockade, 89; rights never resigned, 115; generally 
majority of states, 144; should famiharize themselves 
with principles, 167; Hague Conference respecting rights 
and duties of, 170; power to improve conditions, 177; 
duty to conspiring belligerents, 196 et seg.; treatment of 
foreign diplomats and residents, 197, 198; suffering be- 
cause of war, 220; embargo a weapon of, 221-222; see 
Neutral States 

Neutral rights, 24, 176 et seg., 197 et seg.; see Proclamation, 
233 et seg. 

Neutral ships, taken to allied harbors, 112; concealing 
contraband, 112; seizure of, outside of blockaded waters, 
134 

Neutral States, weary of chestnut pulling, 13; self-restraint 
of, 15; to take action, when, 28; to go on record, 37; 
should refuse to relax rules of convoy, 45 ; limitations of, 
61; recognition of American Civil War blockade, 95; 
warned, 107; supplying Germany, in; trend of sym- 
pathy in, not preventable, 193; see Neutral Powers; bel- 
ligerent agents in, 195 et seg.; aliens in, 210 et seg. 
Neutrality, message regarding, 185 et seg.; of no virtue in 
itself, 191, 192; distinct from national sympathy ,_ 194; 
maintenance of, difficult because of foreign-born citizens. 



256 Index 



Neutrality (Continued) 

205; not synonymous with weakness, 207; useless if not 

virile, 207 

New Jersey, 218 

New York, 218 

Non-combatants, on merchantmen, 26; Germany's atti- 
tude toward, 49; claims as to prejudice, 132 

North America, affected by immigration, 195 

North Sea, trade, 41 ; blockade of, 103; war zone of, 107 

Norway, bounding war zone, 107 

Notification of blockade, 89 

Notice, not required in absolute contraband, 148 

Notices, by belligerents as to contraband, 149 

Opinion, expression of, 185 et seq. 

Oppenheim, L., on use of flag, 5, 58 ; definition of blockade, 

85, 86; as to embargo, 222; regarding U. S., 231 
Orders in Council, 39, 113-115, 117 et seq.; definition of 

blockade before, 82; certain seas referred to in, 115; 

Earl Grey's defense of, 125 

Pacificists, should see cost of peace, 24; may be neutrals, 

25 ; way to secure ends of, 76 
Paris Convention, as to blockade, 92 
Peace, world, 24 
Penal Code of U. S., proclamation of acts forbidden by, 

233 

Pennsylvania, 218 
Peterhoff, case of, 121, 164 

Phillimore, Sir Robert, 6, 131 ; on use of flag, 58; on block- 
ade, 83; on preemption, 141 
Positive Law, recent proclamation without standing in, 

108; war not regarded normal by, 133 
Practices, belligerent, 12; of nations, 19, 20; way to correct 

irregular, 21; belligerent practice on high seas, 32; 

a grievance, 41; convoy, 42; British, in use of flag, 60; 

individual practice in use of flag, 63; changes in, 67, 70; 

not satisfying principle, 78; varied by new conditions, 

103; extension of, 121; questionable, not endorsed, 164 
Preemption, of neutral vessels not carrying contraband, 146 
Preparedness, discussed, 102; duty of, 7, 8; paramount 

duty, 3, 4; requisite of virile neutrality, 207; as essential 

to neutral supremacy, 248 
Press, not to be trammeled by possible censor, 52 ; expert 

service of, 48 et seq. 



Index 257 



Principles, introduce practice, 19; legal, 25; practice not 
satisfying, 78; may be time to seek new, 79; high seas 
not to be closed by legal, no; unvarying, 121; as to 
extending, of blockade, 123; self-respect a principle of 
international law, 200 

Prize Court, ships bearing contraband must go to, 146; 
objection to such on neutral soil, 171 

Proclamation, of war area, 104; of President Wilson defining 
neutral duties, 230 et seq. ; of President of U. S. should 
be printed in different languages, 238, 239 

" Reason of the thing," as applied by neutrals, 73 
Retaliatory measures, 113 
Revolution, in ships, guns, etc., 79 
Rights, cardinal, 176 et seq. 
Rotterdam, 122; use of, by belligerents, 105 
Ruse de guerre, American request as to use of flags, 61 
Russia, as to Declaration of London, 105 
Russian Government, adoption of British list of contra- 
band, 156 
Russo-Turkish War, immigration to time of, 211 

Scandinavian, receipt of enemy goods, 41 

Scotland, bounding war zone, 107 

Scott, James B., reference to Hague Conference, 86 

Scott, Sir Walter, the Boedus Lust, 222 

Search, right of, 10; doctrine of, 15 et seq.', convoy provided 

to avoid, 43; construed, 107; for concealed contraband, 

112 
Seas, freedom of, 7 et ^eg.; high, not free, 10; description of, 

9; human life on, 26; belligerent practices on, 32; neutral 

vessel on high part of home country, 46; British 

supremacy on, 78; not to be closed, no 
Seizure, limitation of right of, 90; of neutral ships, 1 12 
Sequestration, 222 
Ships, not informed of blockade, 89; outward bound from 

blockaded port, 90 
Ships of war, see War ships 
Sovereign rights, invasion of, 115 
Sovereignty, justifiable, 71; of waters, 80; attempt of 

belligerent to impose, 84, 85; characteristic of nations, 

129; rule of contraband negatives, 131; embargo as a 

means for vindicating, 227 
Springbok, case of, 121 
Spring-Rice, Sir Cecil, no 
17 



258 Index 



Story, J., unenclosed ocean of, 10 
Stowell, Lord, Flad Ozen case, 19; Immanuel case, 129 
Submarine, German use of, 36; hail of, 54; blockade, 109; 
a frightful innovation, 109, no; terror inaugurated, 

113 

Sulpicius, letters of, 132 
Supply ships, treatment of, 55 
Sweden, as to convoy in 1653, 42 

Tories, likened to "hyphens," 206 

Trade, neutral, affected, 71; avenues of world, 80; inter- 
fered with by paper blockade of Germany, 112; enemy's, 
to be crippled, 118; Great Britain's interference with, 
124; right of neutral to, 129, 132 ; better block all neutral, 
or none, 140; routes, 145; restraint from, 154 

Transshipment, of cargoes, 40, 145 

Treason, act of foreign-born citizen may be, 198-199; 
machinery to punish, 204 

United States, failure to appreciate value of preparedness, 
4; opportunity of, 8; Mason and Slidell incident, 11; 
discontent in, 12; matter forced on, 22; request of, 38; 
law as to transshipment of cargoes, 40; treaties as to 
convoy, 44; concessions secured by firmness of, 47; 
stirred by press, 48 ; respect for flag, 56 ; note from Earl 
Grey to, 60; as to use of flag, 63; citizens affected 
by international law, 102; as to Declaration of London, 
106; affected by blockade, 102, 103; objections to block- 
ade, 115; exception to British action, 112; suggestion as 
to U. S. attitude, 119; blockade of Confederate coast, 
121; Austrian note to, 122; list of contraband received 
from Great Britain, 149; withdrawal of suggestion, 152; 
affected by restrictions, etc., 155; Department of State, 
156; ship how affected by practice, 157; neutrality rules 
recognized by, 170; particular interest in eleemosynary 
effort, 181; experience of, in matter of foreign residents, 
181-183; search for ground to prosecute conspirators, 
198; complacent in face of alien conspiracies, 199; true 
course for, when attacked through industries, 201 et seq.; 
law passed by Congress of, 1799, 204; law affecting 
disloyal citizens, 205; certain laws aimed at disloyal 
citizens of, 206; statute regarding threat against, 208; 
passed first foreign enlistment act, 232; decisions of U. 
S. Courts, 237; task of, 213; duty as neutral regarding 



Index 259 



foreign residents, 216; census as to industrial capital, 
218; duties of, as defined by proclamation, 230 et seq.; 
greatest of neutrals, 231 ; waters not to be used for hostili- 
ties, 235 et seq.; regarding use of ports, 235 et seq.; per- 
sons required to obey laws of, 237; regarding attitude of, 
at close of war, 247 

United States Supreme Court, case of Peterhoff, etc., 121, 
138, 164; Bermuda, etc., 129, 164; clear reasoning of, 164; 
does not furnish precedents for questionable practices, 
164 

Unneutral acts, referred to, 119; service, 166 et seq. 

Vattel, quoted, 63 

Vessels, report of captain, 43 ; right to visit, 54; as to supply 
ships, 55; severities justified, 27; use of neutral flag, 58; 
seizure of ships misusing flag, 58 ; convoy, 42 ; new condi- 
tions, 13, 79; on blockade, 89; contrasts in, 94; that have 
delivered contraband, 146; may be contraband, 146; 
bearing contraband must go to Prize Court, 146 

Visitation, as affected by convoy, 42 ; right of, 55 

War, act of alien residents maybe, 199, 208; preparation 
for, by enemy, 208 

War measures, novel, 36; Russo-Turkish, 211 

War ships, absolute contraband, 148; convoy, 41; report of 
captain as to convoyed ship, 43 ; claim that they represent 
government on sea, 46; searched by Great Britain, 46; 
ii Armenian refused to answer hail of, 54; right to compel 
visitation, 54; use by enemy of neutral flag, 5.8, .795 
exception in case of, 89; contrasted, 79, 94; restrictions 
affecting, 172; affected by proclamation, 233 et seq.; 
severities justified, 27 

Washington Administration, attitude of , 18 ; pleas reaching, 
21; protest regarding use of flag, 60; correspondence on 
neutral trade, 102, 104 

Washington, George, 205, 231 

Waterways, as to control of, 78-80; certain, not control- 
lable, 116 

Westminster, peace of, 43 

Wharton, Francis, reference to Digest of, 168 

Wheaton, Henry, 222 

Wilson, resignation of Secretary Bryan from Cabinet of, 23- 
25 ; attention to neutral rights, 25 ; attitude toward peace, 
29; Administration action in regard to flag, 60; state- 



26o Index 



Wilson (Continued) 

ment of Law of Nations, 103 ; appeal for neutral expres- 
sion, 185 et seq.; Proclamation of Neutrality, 230 et seq. 

Zone, of German submarines, 62; authoritative, 81; of sea 
in blockade, 98; rights of neutral in war zone, 115; of 
so-called British influence, 125; as to seizure, outside of 
controlled zone, 134 



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